The Deterrence Theory And The Perfection Of Anti-monopoly Damage Compensation System-on The Path Of Law And Economic Research

Anti-monopoly damage system is of great significance to the enforcement of Anti-monopoly Law. In China, Anti-monopoly Law has only made a brief regulation about the relevant civil liability of illegal monopoly in the fiftieth provision. Through the analysis of the anti-monopoly practice in various countries（regions）, it can be seen that all kinds of damage compensation modes are the assurance of the deterrent scale at the basic level of compensation. This paper takes the optimal deterrence as a guide, and makes the deterrence assessment of all existing damage compensation modes. In particular, based on the current status of anti-monopoly damage system, which is lacking in deterrence, we can explore the optimal path of building damage compensation system in China.Firstly, the paper introduces the development of deterrence theory and its connotation. It was found in the penal theory originally and was a kind of pure legal thoughts. Then, this theory was combined with economic analysis method, constructed a series of mathematical models. By making different assumptions, this theory shows us different stages: the equivalent deterrence, the marginal deterrence and the optimal deterrence. In the equivalent deterrence, penalty probability is set to 1. The deterrent effect is best when iniquities equal punishment. Under the role of diminishing marginal utility, when marginal cost equals marginal revenue, deterrent effect performs best in the marginal deterrence. The optimal deterrence includes a comparative analysis of the law enforcement costs and its benefits, and fielded a expanded vision from the offender to the whole society. This theory is based on cost-benefit analysis in our society. Till now, the optimal theory is the most complete in the entire theoretical system. It also plays a guiding role in the legal issue decisions.Thereafter, from the perspective of law and economics analysis, the optimum damage compensation theory develops from the optimal deterrence theory, of which the most representative is the Landes rule. The Landes rule tells us when the probability of finding illegal act is p, the most suitable damage compensation for the antitrust is equivalent to the consumer surplus transfer, plus the deadweight losses and administrative costs of law enforcement and multiplied by the reciprocal of p. In order to have a better apply for antitrust damages theory in China, this paper describes some corresponding complementary theories, including the determination of the qualification of the plaintiff in the anti-monopoly damage compensation lawsuit, damage identification based on causality and determination of no fault principle. The core of these theories is to make antitrust damages achieve optimal deterrence. However, given the computational limitations of Landes rule, some alternative calculation methods have emerged. This paper mainly introduces four estimation methods approved in the American judicial practice: before-after method, yardstick method, market-share method as well as cost-based method.Along with the development of the anti-monopoly law, countries（regions） have also established various modes of antitrust compensation damage systems. Mentioned in this article, there are five types: namely absolute treble damage compensation system in the United States, single damage compensation system in Japan, discretionary treble damage compensation system in Taiwan of China, full damage compensation system in the European Union and punitive damage compensation system in the New Zealand being the most representative. Each different compensation mode is related to the country’s national conditions, hoping to achieve the best deterrent effect. But the implementation has a mixed impact.Under the circumstances of our country, it is urgent to improve the anti-monopoly damage compensation system under the guidance of the deterrence theory. In the last part, we take some typical cases of anti-monopoly compensation, such as Rui Bang v. Johnson case and the case of Huawei v. IDC. Through the analysis, we propose several questions: unclear compensation subject of rights, imperfect liability body, unspecific compensation amounts and so on. Thus this situation results in insufficient deterrence. Based on the above analysis, this paper puts forward that with the view to improving anti-monopoly damage compensation system, we must introduce punitive damages system, simplify and strengthen the calculation method of damage compensation, establish the system of assistance to support the system and the group litigation system, strongly advocated follow-on actions. Only in this way can we strengthen the efforts of anti-monopoly law, curb illegal monopoly behaviors and promote the construction of the fair competitive environment.