Allocation Of Burden Of Proof Of Restrictions And Exclusion Competition Effect In Vertical Restrictive Agreement

With the development of the market economy, monopoly disputes become a hot issue in people’s lives. China’s Anti-monopoly Law has been enacted for seven years, while there are few anti-monopoly private litigations and all of them end in the plaintiff loses. The first longitudinal restrictive agreement lawsuit just emerged in 2013 and it is the only case in favor of the plaintiff so far it is Boiling Chemical Company vs. Johnson &Johnson monopoly case. In the case, who should bear the burden of proof of the restrictions and exclusion competition effect of vertical restrictive agreement is the greatest controversy of the case. Regulation of Application Law of Supreme People’s Court in the Trial of Civil Dispute Cases Caused by Monopoly Behavior solves the “blank” state that there is no law can be based on the burden of proof allocation in the process of horizontal monopoly agreements litigations. However, the burden of proof system that “he who advocates is the burden of proof” of the traditional civil litigation is still applicable in longitudinal restrictive agreement. The particularity of monopoly disputes depends on the difficulty of plaintiff proof and proof of restrictions and exclusion competition effect of vertical restrictive agreement; if the burden of proof is allocated to plaintiffs, it is bound to make plaintiffs difficult to win a lawsuit; thus, victims are reluctant to mention the anti-monopoly lawsuit; not only the victims’ legitimate rights and interests cannot be guaranteed, but also it is not conducive to the progress of anti-monopoly litigation in China. Therefore, the paper is of great research value.The paper mainly discusses the allocation of burden of proof of restrictions and exclusion competition effect of vertical restrictive agreement from the following four parts.Part one introduces the facts of Boiling Chemical Company vs. JNJ monopoly dispute case and the overview of two levels of courts, analyzes the status quo of great burden of proof and frequent lawsuit loss of plaintiffs in the vertical restrictive agreement lawsuit even the anti-monopoly litigation and discuses the flaws of the allocation of burden of proof of restrictions and exclusion competition effect of vertical restrictive agreement in China.Part two introduces the necessity of detailing the allocation of burden of proof of restrictions and exclusion competition effect of vertical restrictive agreement. The author points out that the longitudinal restrictive agreement not only has the effect of restrictions and exclusion competition, but also it is also likely to promote competition. Because vertical restrictive agreement has very complex impact on competition and it is multi-layered, people should sub-classify the allocation of burden of proof of vertical restrictive agreement and cannot generally to prove that the burden of proof of vertical restrictive agreement has the effect of restrictions and exclusion competition and does not promote competition due to plaintiffs.Part three introduces the three affirmation rules of vertical restrictive agreement, namely, illegal per se rule, exception collective exemption immunity rule and the reasonable presumption rule, as well as the allocation models of allocation of burden of proof of restrictions and exclusion competition effect of vertical restrictive agreement under the three rules. The allocation of burden of proof of vertical restrictive agreement is closely linked with the applicable judging rules of vertical restrictive agreement; in order to analyze the allocation of burden of proof of restrictions and exclusion competition effect of vertical restrictive agreement, the applicable affirmation rules should be first determined.In part four, the author puts forward his own innovation: to use the legal value efficiency and fairness to guide the allocation of burden of proof of restrictions and exclusion competition effect of vertical restrictive agreement. Because illegal per se rule focuses on the maintenance of the overall efficiency; the reasonable presumption rule focuses on the maintenance case fairness; the two rules should not be mutually exclusive; only by the comprehensive application of illegal per se rule and reasonable presumption rule, can both efficiency and fair be considered at the same time. Next, the author further analyzes when vertical restrictive agreement has obvious restrictions and exclusion on competition and does promote competition, people should directly apply illegal per se rule; otherwise, reasonable presumption rule should be flexibly applied. Besides, the author analyzes how to allocate the burden of proof of plaintiffs and the defendants in all cases.Part five analyzes Boiling Chemical Company vs. JNJ monopoly dispute case, applies the aforesaid theory to analyze the applicable affirmation rules of vertical restrictive agreement in the first instance and second instance of the case, and points out the defects of two levels of courts to the allocation of burden of proof of vertical restrictive agreement. Finally the author uses his innovation theory to analyze how the case should allocate the burden of proof of plaintiffs and the defendants so as to give consideration to efficiency and fairness.In part six, the author proposes four suggestions aiming at the present situation of overweight burden of proof of plaintiff in China’s vertical restrictive agreement, respectively, in legislation, China should establish the allocation models of the burden of proof under the comprehensive application of illegal per se rule and reasonable presumption rule, adopt fault presumption liability principle, strictly require the law enforcement agents to provide evidential obligation and set up the system of expert witness.