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An Analysis Of The Allocation Of The Burden Of Proof In Anti-Monopoly Litigation

Posted on:2014-04-29Degree:MasterType:Thesis
Country:ChinaCandidate:X P WangFull Text:PDF
GTID:2256330401962746Subject:Law
Abstract/Summary:PDF Full Text Request
With the development of the market economy, monopoly dispute has been a heated topic issue in recent years. Recently, the market battle between Qihoo360and Tencent, two Internet giants in China, has largely drawn people’s attention to anti-monopoly civil litigation. Meanwhile, the Supreme People’s Court has given a legal explanation in The regulations on the Implication of Laws about Civil Litigation Cases Caused by Monopoly Actions by China’s Supreme People’s Court, which effectively helps to deal with the previous situation in the trial of anti-monopoly cases in which there’s no law or regulation to obey. However, the legal system regarding to anti-monopoly litigation in China is still incomplete, with only Anti-monopoly Law of People’s Republic of China and the legal explanation by the Supreme People’s Court. The incompletion has hindered the settlement of monopoly dispute cases. As a consequence, Anti-monopoly litigation during legal practice always goes into such a situation where there are not many monopoly lawsuits and the plaintiffs often lose. This is caused because of several factors. Apart from the incompletion of the legal system, the plaintiff also has difficulty supplying evidence and to prove monopoly behavior is tough because of the particularities of monopoly lawsuits.The burden of proof theory, one of the core contents in the study of civil procedure law, has important realistic meaning in the trial of civil dispute cases. When the truth of some cases is unclear, the allocation theory of the burden of proof is needed to clarify the burden of proof of both parties and achieve the purpose of solving civil disputes fairly and protecting parties’ legal rights. Therefore, considering the various problems in anti-monopoly cases in current China and the crucial meaning of the allocation theory of the burden of proof in civil lawsuits, the study of the allocation of the burden of proof in anti-monopoly lawsuits is necessary and based on the study, we can further explore the rules of allocation of the burden of proof, safeguard the equal status of both sides in anti-monopoly lawsuits, change the situation in which the plaintiff often fails and also provide effective suggestions over the further building of the related system in anti-monopoly civil litigation in China.The allocation of the burden of proof in anti-monopoly litigation will be analyzed in the following four parts.Part one, through the description and analysis of the dispute case between Qihoo360and Tencent and the current situation in anti-monopoly lawsuits in China, some observations can be got. First, the proof object in anti-monopoly lawsuits is regarded as the core whether in the trial process or the final trial result. Then, there are less anti-monopoly lawsuits and the plaintiff often loses in judicial practice in China. Clarifying the proof object and the allocation of the burden of proof will be of crucial impact. Therefore, two key issues need to be dealt with in anti-monopoly litigation, that is, the proof object and the allocation of the burden of proof.Part two, Referred to the proof object in general lawsuits, the proof object in anti-monopoly lawsuits should be carried out from four aspects, the objective existence of illegal anti-monopoly actions, the existence of facts of damage, the cause and effect relation between illegal actions and facts of damage and actor’s subjective fault. Then, the four aspects are analyzed in detail based on Anti-monopoly Law of the People’s Republic of China. Considering that there are many monopolistic cases where operators reach a monopoly agreement or abuse their dominant market position, the analysis of the allocation of the burden of proof and the proof object in this paper will be focused on the two kinds of monopolistic actions. Because of the complexity of anti-monopoly cases, the author deems that the damage in anti-monopoly cases should only include the direct loss and for the cognizance of causality, loose standards should be adopted. In addition, in order to lighten the plaintiffs burden of proof, the rule of fault presumption should be applied to anti-monopoly litigation.Part three, based on the analysis of the four proof objects in part two and referred to the Anti-monopoly Law of the People’s Republic of China and Rosen Beck’s theory of burden of proof allocation and the principle of burden of proof inversion, the allocation of the burden of proof in the four constitutive elements is further elaborated in this part. I have the following opinions. First, the plaintiff should bear the burden of proof for the objective existence of illegal monopolistic conducts and damage facts. Second, in terms of the proof of causality, the inversion of burden of proof should be applied and the defendant should bear the burden of proof for the inexistence of causality. Third, the rule of fault presumption need to be implemented when subjective fault need to be cognized. In other words, the defendant can put forward defence without fault and take the burden of proof for it.Part four, some suggestions over the building of the related system in anti-monopoly litigation are put forward. The evidence system in anti-monopoly litigation should be developed by enlarging the range of valid evidence and establishing the expert witness system. Besides, the professional trial ability in judges needs to be improved and the fair market order should be guaranteed.
Keywords/Search Tags:anti-monopoly litigation, anti-monopoly law, proof object, theallocation of the burden of proof
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