Research On The Burden Of Proof System In Private Litigation For Abusing Market Dominance

With the rapid development of China's market economy,the abuse of market dominance disputes continue to emerge,and it has become the norm for private citizens to file civil lawsuits against the abuse of market dominance.However,in judicial practice,the implementation effect of private litigation of abuse of market dominance is not satisfactory,and the winning rate of the plaintiff is very low,which has a lot to do with the imperfection of the burden of proof system in private litigation of abuse of market dominance.Different from the general civil litigation,the private litigation of abusing market dominant position has its own particularity,that is,there is a huge difference between the plaintiff and the defendant in the ability to obtain evidence,and the case itself has a high degree of professionalism and complexity.Although China's "anti monopoly law" and the Supreme People's court's "provisions on the application of law in the trial of civil disputes caused by monopoly behavior"(hereinafter referred to as the "judicial interpretation of anti monopoly law")have made some special provisions on the burden of proof system in private litigation of abuse of market dominant position,it still can not alleviate the problem of the plaintiff's difficulty in providing evidence.Based on the analysis of private litigation cases of abuse of market dominance in judicial practice,the author summarizes the problems existing in the system of burden of proof in such cases,and combines with the relevant advanced theory and practical experience of the United States,puts forward targeted and operable suggestions,so as to improve the system of burden of proof in private litigation of abuse of market dominance in China.This paper consists of four parts:The first part introduces the concept and specific distribution content of the burden of proof system in general civil litigation,that is,"who claims,who provides evidence".Secondly,it introduces the specific application of the general rules of the burden of proof in the private litigation of abuse of market dominance,that is,the plaintiff should bear the burden of proof for the behavior of abuse of market dominance,the subjective fault of the defendant,the damage result and the causal relationship between the abuse behavior and the damage result.Finally,it introduces the particularity of the private litigation of abuse of market dominance,that is,the plaintiff should bear the burden of proof The unequal status of the defendants and the professionalism and complexity of the case itself lead to the necessity of improving the burden of proof system in private litigation of abuse of market dominance.The second part analyzes the private litigation cases of abuse of market dominance in China's judicial practice,and summarizes the problems existing in the burden of proof system in such litigation.Firstly,the burden of proof of the plaintiff is too heavy,which is mainly due to the lack of subjective initiative of the court in defining the relevant market,the inability to investigate and collect evidence on its own,and the fact that the Plaintiff still needs to bear the burden of proof for the anti competitive effect in the case of unclear legal provisions.Secondly,the court has made an interpretation of the burden of proof system which is not conducive to the plaintiff,mainly including the improvement of the application conditions of presumption rules and the inconsistent requirements of the standard of proof.Finally,the plaintiff's evidence collection channels are limited,and the antitrust law enforcement agencies lack the necessary connection with private litigation.The third part is the introduction and analysis of the burden of proof system of private litigation of abuse of dominant market position in the United States,and compared with the relevant systems in China,from which we can find the advanced system for our reference.In the United States,the burden of proof is mainly reduced through the application of the standard of superior evidence and the transfer of the burden of proof.The relevant evidence systems include the evidence discovery system,expert assistant system and the support of anti-monopoly law enforcement agencies for private litigation.The fourth part is about the problems existing in the system of burden of proof in private litigation of abuse of dominant market position in China.Based on the relevant advanced theory and practical experience of the United States,it puts forward some targeted and operable suggestions.First of all,in order to reduce the burden of proof of the plaintiff,the law can provide that the court has the right to investigate and collect evidence on its own when it comes to the definition of the relevant market.As for the burden of proof of anti competitive effect,it should be reversed to the defendant.Secondly,the preliminary evidence rule should be applied in the private litigation of abusing market dominant position,and the standard of proof should be reduced to the standard of superior evidence.Finally,we should introduce evidence discovery system and strengthen the connection between anti-monopoly law enforcement agencies and private litigation.