Theory Of Antitrust Private Litigation Burden Of Payment Difficulties And Countermeasures

As “Economic Constitution”, antitrust law plays a fundamental role insafeguarding free market competition and protecting the legitimate rights and interestsof consumers. Article50of the Anti-monopoly Law of the People’s Republic of Chinaprovides the relevant terms with respect to civil judicial remedy granted to the victimssuffered from monopoly behavior. Private civil litigation is an important part of thesystem of anti-monopoly law enforcement. However, the effect of anti-monopoly civillitigation has not been so ideal in the recent over three years, since China’sAnti-monopoly Law entered into force. One of the major reasons is that the system ofevidential burden of anti-monopoly civil litigation has been unreasonably designed, andthere is no specialized rule system of evidential burden directed towards it. This papermakes an investigation on the specific issues of evidential burden system ofanti-monopoly civil litigation in China, on the basis of the observation and analysis ofthe actual situation in China and the relevant stipulations and judicial practicesconcerning evidential burden system of anti-monopoly civil litigation abroad, for thepurpose of providing helpful suggestions for the establishment and perfection of thesystem. The integrated system of anti-monopoly private litigation of China shall beultimately established. In addition to the introductory part, five parts are included in thisthesis.Chapter one gives a brief introduction to system of evidential burden ofanti-monopoly private litigation. In this chapter, the author firstly gives a definition toanti-monopoly private litigation studied in this thesis, and points out the advantages ofenforcing anti-monopoly law by means of private litigation. Secondly, he makes aninvestigation on the actual situation of anti-monopoly private litigation in China, byusing the methods of empirical analysis, and then reaches a conclusion that the majorreason for it is the deficiency of specific legal system. Thirdly, he makes an introductionof the extremely important system of evidential burden, and probes into the objects ofevidential adducing and the characteristics of evidential burden in anti-monopolyprivate litigation.Chapter two points out the dilemma of evidential burden system of anti-monopolyprivate litigation in China. In China, specialized rule system applied to anti-monopoly private litigation has not yet been established. Therefore, only general civil procedurerules can be applied in the stage of adducing evidence. When the general system ofevidential burden is applied, there come forth the drawbacks such as plaintiff’s overburdening of adducing evidence, missing of the types of evidence form and failure ofgiving play to the advantage of pretrial evidence exchange.Chapter three investigates into foreign systems of evidential burden. In view of thepresent dilemma faced by China’s evidential burden system of anti-monopoly privatelitigation, the author directionally observes and analyzes the evidential burden system ofthe world’s major antitrust countries and regions such as the United States, Japan andEuropean Union, in order to use the experience of them.Chapter four prospects the perfection scenario of China’s evidential burden systemof anti-monopoly private litigation. In this chapter, the means by which China’sevidential burden system of anti-monopoly private litigation are established andperfected are discussed. Such systems should be established as selective inversion ofevidential burden, granting evidential function to illegal decisions and evidentiarymaterials made by the Anti-monopoly Authority,“expertise assistant” and pretrialevidence exchange.The final chapter is the conclusion of this thesis. Based on the discussions ofchapter three and chapter four, the author unscramble the judicial interpretation (a draftsoliciting opinions) on anti-monopoly civil litigation issued by Supreme People’s Courtof China, and analyze the success and failure of its provisions establishing system ofevidential burden of anti-monopoly private litigation. Finally, concrete and feasiblesuggestions of its perfection are brought forward, and it will be hopeful to get rid of thedilemma of China’s evidential burden system of anti-monopoly private litigation.For the sake of the establishment and perfection of China’s evidential burdensystem of anti-monopoly private litigation, it is a must to further use the experience ofother countries and regions for reference. Meanwhile, the specificities of China’s locallegal resources should be taken into account. The academic innovations of this thesis liein that it makes a thorough exploration of evidential burden system of anti-monopolyprivate litigation, which China’s present legal academic circle and practice circle havenot systematically, meticulously or specially researched, by using the methods ofsystematical comparison and empirical analysis, and brings forward suggestions of system perfection. Moreover, the author’s research is interdisciplinary on legaldepartments, involving economic law and civil procedure law, and he studies theknowledge from them comprehensively.