Analysis Of The Realistic Obstacles Of Antitrust Follow-on Action And It’s Solution In China

The civil antitrust litigation system originated from the Sherman Act of the United States,which means that private individuals can bring civil lawsuits to remedy the rights and interests infringed by illegal monopolistic acts.There are two types of civil antitrust lawsuits: independent lawsuits,which are filed directly by private individuals in the people’s courts,without taking the enforcement decisions of public enforcement agencies as a precondition;and subsequent lawsuits,which are filed after the enforcement decisions of competition enforcement agencies.In independent litigation,the private plaintiff needs to complete the proof of the existence and illegality of the monopoly act,the damage result and the causal relationship through the evidence collected by himself.This is undoubtedly an extremely costly litigation,and the information bias between the plaintiff and defendant can exacerbate the difficulty of litigation,which is even more pronounced in hardcore cartel cases.In contrast,a private plaintiff in a subsequent lawsuit has a relative advantage in terms of litigation costs and burden of proof,which is reflected in the fact that with the decision of public enforcement and the application of prima facie or binding rules,a private plaintiff can prove the existence of illegal monopolistic behavior without any resources,which can significantly reduce the burden of proof and litigation costs for private plaintiffs.In addition,the evidentiary information investigated by the administrative authorities in the public enforcement can also be provided to the plaintiff through the plaintiff’s application or the court’s access to discovery,which broadens the plaintiff’s evidence collection channels and also improves the plaintiff’s ability to prove and reduces its burden of proof.In general,private plaintiffs in antitrust litigation can ride on the coattails of the government’s public enforcement,and can easily meet their burden of proof,win the lawsuit,and obtain damages,which is a powerful supplement to public enforcement and enhances the deterrence of antitrustlaw.Compared with the United States,the development of antitrust litigation in China has lagged behind and the system is not functioning well.Since the implementation of the Anti-Monopoly Law in 2008,the number of follow-on lawsuits in China is only a handful,and the success rate is extremely low,and the cases generally present characteristics such as long litigation time,insufficient litigation momentum and complicated procedures.Through the combing and analysis of typical cases in China,it can be seen that private plaintiffs still face a lot of obstacles in the process of filing follow-on lawsuits.First of all,it is reflected in the connection between administration and justice.At present,China has not formed a unified opinion on the effectiveness of public enforcement decisions in judicial practice,and private plaintiffs are still required to prove that the monopoly act is illegal in the follow-on action,which also includes the proof of anti-competitive effects;and the disclosure of administrative enforcement penalty decisions is not comprehensive enough,and the plaintiffs have poor access to public enforcement information.The interface between the problem of the plaintiff’s burden of proof in the invisible aggravation.Secondly,in the follow-on action,in the face of different proof of the difficulty of the constituent elements and information disadvantaged private plaintiff,the court insisted on the uniform application of a high degree of conclusiveness of the civil litigation standard,and the defendant in possession of key evidence to apply a lower standard of proof to rebut the facts to be proved.Finally,China has not established an effective small rights remedy path,and it is difficult for consumers,as the furthest victims of monopolistic behavior,to obtain relief for their rights and interests.Throughout the world,under the influence of the U.S.antitrust follow-on litigation,the European Union,the United Kingdom,Germany,Japan and other countries have been promoting the implementation of antitrust follow-on litigation by giving binding effect to public enforcement decisions or prima facie rules,opening up the plaintiff’s access to public enforcement information,introducing the antitrust class action system and other changes,injecting strong support for private enforcement and effectively improving the implementation of antitrust follow-on litigation.The environment of antitrust litigation has been improved.China should also learn from the experience of foreign countries,fully understand the obstacles of anti-monopoly litigation in China,and propose corresponding measures to solve them.On the interface between administration and justice,on the one hand,the prima facie effect of public enforcement decisions should be clarified in judicial interpretations or supporting laws and regulations;on the other hand,it should also be clarified that judges have the right to access information of administrative enforcement agencies and open them to plaintiffs.In the standard of proof taking into account the difficulty of proof and the plaintiff’s ability to prove and with the evidence of the distance can moderately reduce the standard of proof to apply the standard of proof of superiority,reduce the burden of proof of the plaintiff.At the same time,in order to stimulate the filing of subsequent lawsuits and effectively remedy the rights and interests of consumers,a class action system should be introduced to provide relief for small consumers’ rights and interests while strengthening the deterrence of the antitrust law.