Research On Private Implementation Of Antitrust La

The enforcement system of anti-monopoly law can be divided into public enforcement and private enforcement.The public enforcement subject is the anti-monopoly authority,while the private enforcement subject is the private subject.The two are like two wheels of a bird or two wings of a car.Our country maintain market order by "public implementation mainly,private implementation supplemented".Because public implementation can not completely overcome the harm of the illegal behavior of monopoly has "ripple effect",It is necessary for private enforcement to play a complementary role in jointly maintaining the fair market competition order.It can be seen that private enforcement plays an important role in the field of antitrust law enforcement.China promulgated the "Anti-monopoly Law" in 2008,in which the article 50 makes the principle provisions for the private implementation system.Due to the principle regulation,the relevant anti-monopoly lawsuits filed by private subjects are not optimistic.Therefore,in 2012,the Supreme People’s Court issued the Judicial Interpretation of Civil Litigation under the Anti-Monopoly Law,which clarified the plaintiff’s qualification and the way and scope of damage compensation,and also made the burden of proof distribution in favor of the plaintiff.However,from the perspective of specific implementation,Although it alleviates the principle deficiency in the private implementation regulation to a certain extent and the cases brought by private subjects in anti-monopoly litigation are increasing gradually,but most of the cases are concluded by plaintiffs losing.There is still a certain predicament to be solved urgently.It is also the same as the meaning expressed in the 2022 Supreme People’s Court’s "Draft for Public Consultation".The dilemma of private enforcement of antitrust law includes four aspects,first of all,the Anti-Monopoly Law and its judicial interpretation are still not specific enough in terms of the plaintiff’s qualification,ignoring the "ripple effect" of monopoly offenders in the field of anti-monopoly law,resulting in the problem of "diversity and complexity" of the infringed;And then,private subjects can not rely on their own knowledge power to complete the burden of proof;Last but not last,the regulation and relief of damage compensation with "actual loss" is not enough to make up for private subject loss and crack down on the illegal behavior.Therefore,the author thinks that it is necessary to improve the private implementation system of our anti-monopoly law on the basis of existing regulations.Clarify the "indirect purchaser" has the plaintiff qualification,establish the class action system to overcome the monopoly illegal behavior "ripple effect";By referring to the system of pretrial evidence discovery in America to perfect the evidence system in the private implementation in our country,we will perfect the distribution of burden of proof by setting a prerequisite condition and more favorable inversion of burden of proof for plaintiff.We adopt "comparative method" and "measurement method" to improve the calculation of damage compensation,and improve our private implementation relief provisions by referring to the injunction litigation of Japan and the punitive damage compensation of the United States.