Research On The Consumer's Burden Of Proof In The Abuse Of Market Dominance Litigation

In 2018,the Third Plenary Session of the Nineteenth Central Committee of the CPC approved the establishment of the State Administration of Market Supervision and Administration,which means that the three carriages originally responsible for anti-monopoly law enforcement have been merged into one,and the anti-monopoly law enforcement work can be carried out more vigorously.However,public law enforcement is not omnipotent,and it must be supplemented by private enforcement in order to achieve more development results.However,from the perspective of the judgment,China's anti-monopoly civil litigation seems to be not going so smoothly.There are two disadvantages: first,the overall number of litigation is not high,which reflects that China's Anti-monopoly Law has not fully penetrated into the public perspective;second,the winning rate of private litigation is low,and most of them basically end up losing because the link of proof can not be completed,especially the litigation brought by consumers.Consumer rights protection has always been a hot topic in society.When it is studied in combination with anti-monopoly litigation,it is believed that it can reflect more practical problems and find a way out for the above two discomforts.In practice,the relationship between abuse of market dominance and consumers is closer than monopoly agreements and concentration of operators,so this paper chooses abuse of market dominance litigation as a starting point for the research.This paper is divided into four chapters to discuss the theme step by step.In the first chapter,the author uses case analysis method to study the practical problems and points out the problems found in the case analysis,that is,the low winning rate of abusing market dominant position litigation proposed by consumers,and initially points out that the overburden of consumers' burden of proof is one of the possible reasons,and explains the reasons why consumers are particularly picked out.The second chapter first summarizes the existing legal regulations in China and the burden of proof that the plaintiff and the defendant have to bear in such cases,and visually shows the difference of the burden of proof between the two.Then it introduces what attempts have been made by the current law to balance the burden of proof between consumers and operators.But in fact,the existing attempt has not achieved its due effect.For each reason,the author thinks that it maybe because the applicable conditions of the transfer of burden of proof are not clear.So the third chapter starts with theoretical research on the applicable conditions of the burden of proof,and lists the conditions under which the transfer of burden of proof can be carried out in detail.The fourth chapter is a reflection on above.Because the transfer of burden of proof has its inherent limitations,and relying on the subjective judgement of judges is not as stable as the objective decision of law,it proposes to invert the burden of proof,fundamentally reduce the burden of proof of consumers.Finally,it puts forward the ligitation of abuse of market dominance through the analysis and analogy of the existing inversion rules.