Study On The Antitrust Indirect Purchaser's Right Of Action

There are fierce disputes on the issue that whether it should endow indirect purchasers with antitrust right of action.In theory,endowing indirect purchasers with antitrust right of action conforms to corrective justice,the purpose of antitrust law which is protecting consumers' rights and interests,compensatory and deterrent function of antitrust law and the interest of lawsuit proper party theory.In practice,it also conforms to the present situation in China such as the ambiguous provisions about the indirect purchaser's antitrust right of action,the underdevelopment of private antitrust action,and the deficiency of indirect purchaser's antitrust litigation.Indirect purchaser's antitrust right of action needs to be guaranteed institutionally,it should clear the “passing-on” problem of overcharge,improve the system of representative action and public interest action,regulate the punitive damage compensation,and clarify the calculation and distribution method of the damage compensation of indirect purchasers.This article is composed of introduction,body and conclusion,in which the body consists of five chapters.The first chapter is the basic description of the indirect purchaser's antitrust right of action.This part analyzes the meaning and characteristics of indirect purchaser compared to other victims such as competitor and direct purchaser based on the analysis of product supply chain model;this part also defines the scope of antitrust right of action in this article.On the premise of clearing basic concept,this part points out the core issue of this paper that there are fierce disputes on the issue whether it should endow indirect purchasers with antitrust right of action.Through a brief introduction of provisions and developments on indirect purchase of antitrust litigation in the United States,Germany and the EU,it indicates there are divergences in different countries and the same country in different periods.In China,whether in theoretical debates or the legislation,it shows that there are still some obstacles to endow indirect purchasers with antitrust right of action.It should be clarified.The second chapter is about the key problems of indirect purchaser's antitrust right of action.Firstly,this part explains the passing-on problem is the root of other related problems.Then,it indicates that passing-on has great influence on the indirect purchaser's litigation and analyzes the legal consequences of allowing or prohibiting the defendant to bring passing-on defense,and concludes that indirect purchasers should enjoy the right of action.Finally,the “indirect purchaser rule” in the United States has great disadvantages,it can not achieve the expected consequences,and the analysis of the disadvantages of the rule can also demonstrate it is rational to endow indirect purchasers with antitrust right of action in our country.The third chapter is about the theoretical basis of indirect purchasers having antitrust right of action.This part theoretically demonstrates that endowing indirect purchasers with antitrust right of action conforms to corrective justice,the purpose of antitrust law protecting consumers' rights and interests,compensatory and deterrent function of antitrust law and the interest of lawsuit proper party theory.The fourth chapter is about the practical demand of indirect purchasers having antitrust right of action.This part focuses on the practice of antitrust legislation and judicial practice in China.Based on the analysis of the current legislation,it points out that the provisions about indirect purchaser's antitrust right of action is not clear;through statistical analysis on anti-monopoly private litigation cases,it should not limit indirect purchaser's antitrust right of action in the situation which the antitrust public enforcement is inefficient,antitrust private litigation is undeveloped,and the lower rate in favor of plaintiff;through empirical analysis and case study,it is found that indirect purchasers antitrust litigation is seriously deficient.There is only one case in which the court adjudges indirect purchasers have antitrust plaintiff qualification.Above all,it is the practical demand to endow indirect purchasers antitrust right of action in China.The fifth chapter is about the institutional improvement of indirect purchaser's antitrust right of action.Through the theoretical and practical analysis above,it is clear that the indirect purchasers should have antitrust right of action,and the smooth exertion of the right of action also needs institutional guarantee.The indirect purchasers have unique characteristics compared with the competitors and the direct purchases,its characteristics determine that the protection of its antitrust action should be targeted.Combined with the characteristics of indirect purchasers in the second part of this article,this part puts forward some suggestions such as clearing the “passing-on” problem of overcharge,improving the system of representative action and public interest action,regulating the punitive damage compensation,and clarifying the calculation and distribution method of the damage compensation of indirect purchasers to guarantee the effective exercise of indirect purchasers antitrust litigation.