Research On The Distribution Of Burden Of Proof In Anti-monopoly Civil Action In China

With continuous deepening of China's market-oriented reform and further popularization of the competitive culture,it has become a judicial norm that private individuals file anti-monopoly civil litigation to the court.Compared with an increasing number of anti-monopoly cases,there are few successful cases of civil anti-monopoly litigation won by plaintiffs,As an important way to implement the anti-monopoly law,the progress of anti-monopoly civil lawsuits in China is far from expected.which is crucially related to the imperfection of the allocation of the burden of proof in anti-monopoly civil litigation.Anti-monopoly civil litigation,different from traditional civil litigation,has the characteristics of great disparity in the power of the main body of proof,high degree of professional content of proof,uneven distribution of evidence,etc.The burden of proof as "the backbone of the lawsuit",Its particularity shall be taken into full consideration when the system for allocating the burden of proof in anti-monopoly civil litigation is designed.Although China has made special provisions on the allocation of the burden of proof in anti-monopoly civil litigation,they are too conservative or ambiguous to provide clear guidance for judicial practice in the court.In the current anti-monopoly civil litigation,the court often allocates the rules of the general burden of proof for the civil suits that are mechanically applicable.The plaintiff may bear a heavy burden of proof.Through empirical analysis of two major antitrust civil lawsuits,There are some problems in the anti-monopoly judicial practice,such as different rules for the allocation of the burden of proof in the same type of case,the unspecific mechanism for the transfer of the burden of proof,unclear ideas for the determination of the monopoly behavior,etc.Not only have such problems undermined the rationality of the judgment results of anti-monopoly cases,but they have also seriously hindered further development of anti-monopoly civil litigation in China.To tackle the problem of allocating the burden of proof in anti-monopoly civil litigation,importance shall be attached to reasonable system construction.First,anti-monopoly legislation shall be further perfected.Based on the conclusion of our country's experience in the implementation of anti-monopoly law over the past decade,the pattern types of illegal analysis applicable to different monopoly agreements shall be specified to construct corresponding rules for the burden of proof;the allocation rules for the burden of proof of abusing the dominant position shall be optimized with the latest theoretical and practical achievements in current anti-monopoly law.Second,the existing proof system shall be improved.The weaknesses of the plaintiffs ability to collect evidence in anti-monopoly litigation can be eliminated through introduction of the support of law enforcement agencies and the evidence disclosure system.Finally,judges shall be allowed to determine the parties' burden of proof by taking into account various factors.Judges,however,must fully consider the legislative purpose of the anti-monopoly law,the principle of fairness and justice and the economically accepted rule of thumb when exercising discretionary power and make a detailed discussion of its reasoning in the judgment to avoid abuse of discretionary power.