Study On The Protection Of Consumers In Antitrust Laws

Traditional theories of antitrust law understand consumer protection based on "individual efficiency doctrine". This is mainly manifested in two aspects. First, the Chicago School based on the rational choice theory leads the legislation and implementation of antitrust law, and the view is widely accepted that the purpose of the antitrust law is to promote economic efficiency, and then indirectly protect the interests of consumers through the promotion of economic efficiency. Second, the traditional idea in the consumer law to protect individual consumers tendentiously also generates influences to the antitrust law. Under this doctrine, the purpose and implementation of the antitrust law is to promote economic efficiency, and efficiency gains can indirectly promote individual consumer welfare.Limitations of traditional theory is mainly reflected in two aspects. First, it does not highlight the power of consumers in antitrust law. Second, there is too much emphasis on the protection of "individual" consumers. Currently, it has become the deficiency of China’s anti-monopoly law that the weakness of consumers, the high costs of right-safeguarding by consumers and too highly dependence on government regulations. While it can only lead to a situation where consumers safeguard rights individually and passively that relying solely on consumer laws regarding consumers as the weak and protecting consumers unequally and individually. Under the condition that the antitrust law has not been able to closely be in conjunction with the consumer law, this passive situation is more prominent.Faced with the limitations of traditional theory, this paper reconstructed the doctrine of the antitrust law, that is, from the "efficiency oriented" to "consumer welfare oriented", from "individual protection" to "collective balance of rights". This constitutes the "collective consumer doctrine" compared with traditional "individual efficiency doctrine". The new doctrine views that the purpose of the antitrust laws is to protect the interests of consumers, and that the antitrust law can protect the interests of consumers directly. Furthermore, it is to protect the interests of collective consumers rather than individual consumers. The collective consumer doctrine attempts to fuse the rational choice theory and the behavioral theory, to eliminate the differences between the antitrust law and the consumer protection law based on above theories respectively, and to elaborate and build an institution protecting the interests of collective consumers. At the same time, the paper would also explore the possibility of law enforcement and systems construction under this new doctrine, including institutional integration, improvement of anti-monopoly civil litigation, empowerment of consumer organizations, and convergence of laws, etc.In fact, the anti-monopoly law and the consumer protection law are two essential legal departments to the effective functioning of the market economy. There are significant differences between them in terms of concepts, dimensions and emphases. So the connections between them can easily be ignored. Taking into account the two laws are so complementary and their mutual influences, they are referred to as integrated "consumer laws" in this paper. And, the author believes that the purpose of the two laws is to protect consumer welfare, but the antitrust law is to protect the "interests of collective consumers", while the consumer protection law is primarily to protect the "interests of individual consumers". It will not be able to form an effective protection of consumers ignoring the protection of collective consumers while valuing the protection of individual consumers.In summary, the "collective consumer doctrine" holds that relying solely on the protection of individual consumers is not sufficient to fully protect the interests of consumers. It needs to regard consumers as a whole, and empower them with institutional rights, especially by empowering related rights that can be used in the antitrust law. Taking into account that almost every person is a consumer in the society, the protection of the interests of collective consumers is in fact the protection of the interests of the whole society.Firstly, the goal of the antitrust law should be clear to protect the collective consumer welfare-oriented public interest. The diversification of the goals of the antitrust law has already be an inevitable trend. It also meets the practical needs of a democratic society. But it is undeniable that multiple purposes may also deviate from their original target. When purposes conflicts with each other and interest groups could not reach a consensus, the final result may lead to a situation that "too many goals equal no goals". Therefore, it is very important to illustrate the public interest in underlying the multiple goals. On this issue, the consumer-oriented public interest can be understood as a compromise between the ideal and the reality. For one thing, the ultimate goal can resolve non-stop round games among interest groups concerned by efficiency doctrine. On the other hand, due to the fact that any person is a consumer, the consumer doctrine is easier for accept compared to the efficiency doctrine. Therefore, it can gain more support from the public and political parties. Of course, the collective consumer welfare-oriented public interest doctrine is still not beyond the trouble of objective uncertainty. However, by means of introducing appropriate procedures and analyzing case by case, it can also reduce the potential adverse impact of uncertainty and political influences.Secondly, the collective consumer doctrine should be reflected in the enforcement of the antitrust law. The collective consumer doctrine holds that, when determining whether certain conducts constitute monopoly acts, it should not only consider their impact on market competition, but also consider their influences in the interests of collective consumers. If the target behavior undermines the interests of collective consumers, it should be considered as monopoly act even if there were no harm on market competition. The collective consumer doctrine shall be integrated into the enforcement of the antitrust law whenever it is used in the regulation of monopoly agreements, abuse of dominant market position or concentration of undertakings.Thirdly, the collective consumer doctrine accords great importance to the collective consumer welfare paradigm, and tries to standardize and integrate the two systems (the antitrust law and the consumer protection law). The antitrust Law and the consumer protection law should collaborate to overcome market failures. Monopoly is one of the causes to asymmetric information, and eliminating monopoly is an important part of protecting the interests of consumers. At the same time, consumers and consumer organizations are also an important force in the fight against monopoly. The fact that the antitrust law does not highlight the power of consumers (especially the lack of system to push consumers to participate in the enforcement of the antitrust law), and the bias of the consumer protection law (too much emphasis on the tendentious protection of individual consumers while ignoring the possibility to empower collective consumers to form a counterweight to the power of undertakings, such as the collective appeal right in private antitrust litigation), have resulted in contradictory theories and harmed the interests of consumers. In this regard, it should carry out a variety of system constructions, and promote consumers to push institutional changes through their own strength. For example, it should promote the development of private antitrust litigation and create favorable conditions for private litigation system. It should give consumers the right to bring antitrust class action. It also needs to encourage consumers private litigation by empowering consumers the rights of obtaining punitive damages claims. Finally, in order to form powers sufficiently compete with the undertakings, it is also important to guarantee the freedom of association for consumer organizations.In short, the collective consumer doctrine can overcome the shortcomings of the individual efficiency doctrine in the protection of interests of collective consumers. It can also effectively integrate and optimize the antitrust law and the consumer protection law, and improve the overall social welfare. Therefore, it needs to transform the antitrust law and its enforcement by introducing new ideas and systems, and upgrading and optimizing the legal system.