Private Enforcement Of Antitrust Law

Irving Fisher defined monopoly as lack of competition. In the operation of market economy, the monopoly strictly restrict the free competition,damage the market,and harm the interests of consumers. Currently there are two enforcement mechanisms of Antitrust Law in world: public enforcement mechanism and private enforcement mechanism. In western developed market economy countries, there are specific provisions of antitrust private enforcement. For example, the treble damages suit of the United States and the injunction litigation of Japan.However, China's Anti-monopoly Law only provide in principle in article 50 that the operators carry out monopolistic behavior, cause losses to others, shall bear civil liability. The legal status and the rights of the private victim are not clear in the antitrust enforcement mechanism, scarcely no content about the relief of the rights of the victim, let alone the specific provisions of judicial relief procedure of the victims. From a practical point of view, the private enforcement of antitrust system does not fully comply with the requirements of antitrust enforcement.In this paper, on the basis of comparative analysis of the private antitrust enforcement mechanism and the establishment of the related systems of other countries, the establishment and improvement of China's private anti-monopoly enforcement mechanism were discussed,the text is divided into four parts, as the following shows:ChapterⅠ,is the antitrust enforcement system. First it describe the nature and danger of monopoly, on the basis of this understanding, obtained that the anti-monopoly law enforcement have some special value; Second, the United States and Japan, for example, analyzed the two types of the antitrust enforcement mechanism,the public enforcement and the private enforcement, and also tried to define the definition of the private enforcement. For a long time,many countries paid attention to the public enforcement of Anti-monopoly Law, with the increasing of the punishment of the public enforcement and the means of implementation, after the development of private enforcement to a certain extent, there must be conflicts between the two. However,the public enforcement has some defects such as the lack of action to monopoly, these defects seriously affected the implementation of Antitrust Law,also produced demands for the private enforcement of antitrust.ChapterⅡ,the theoretical analysis of the private enforcement of Antitrust Law. U.S. Justice Frank is the the originator of the"private attorney general" theory. First I introduced the overview, origin, and the reasons by supported of the private attorney general theory. Secondly, I described the current two modes of the private enforcement of Anti-monopoly Law: direct execution mode and pre-trial summary execution mode. Finally,the conclusion is that,compared to public enforcement,the private enforcement of Antitrust Law has a strong deterrent function, relief function, compensation function and other positive features, but also there are, in some cases, some disadvantages of private enforcement, we should be objective and comprehensive analysis the positive features and negative features of the private enforcement.ChapterⅢis the establishment of the foreign antitrust private enforcement mechanism. The western developed market economy countries all have some special antitrust private enforcement provisions. The author checked the history of the antitrust private enforcement of the United States and Japan,also introduced the provisions of private enforcement of Antitrust Law and related systems of the United States and Japan and other countries, such as: the treble damages suit of the U.S., the injunctive relief of the Equity Law and the injunction litigation of Japan.ChapterⅣ, the rethinking of China's private enforcement mechanism of Anti-monopoly Law. The public enforcement of anti-monopoly of China have two questions following: First, the lack of law enforcement resources and lack of willingness of law enforcement;the second is the lack of force of the duty of Antitrust Law. In order to better regulate the monopoly, further reflection and improvement on antitrust private enforcement is needed. Use the experience of the U.S. and Japan on setting up the private enforcement of antitrust law,the principles of antitrust private enforcement should follow: the principle of protecting consumer interests and social welfare, the principle of balancing the private litigation and the abuse of lawsuit. Strengthen the construction of the organization of anti-monopoly private enforcement:adopt the direct execution mode of the anti-monopoly law, introduce the systemn of punitive damages of the U.S., improve the intervention system of the private that implementate the Antitrust Law and make the remedy systematic,at the same time, make private enforcement and public enforcement cooperate with each other .