论我国反垄断私人诉讼制度的完善
发布时间：2018-12-12 23:15
【摘要】：反垄断法的私人主体实施是与反垄断法的公共主体实施具有同等地位的反垄断法不可或缺的实施方式，私人主体因为垄断行为者的违法垄断行为使其利益受损时所提起的民事诉讼就是反垄断法的私人诉讼。与普通的民事诉讼所不同的是，反垄断法私人诉讼在原告的主体资格、举证责任的分配等多方面均表现出不一样的法律特征，反垄断法私人诉讼还具有对私人救济与对社会公益的双重救济功能。反垄断法在具体的实施过程中，，私人主体实施与公共主体实施存在着显著的差异。要保证反垄断法功能的有效发挥，两者之间的冲突就必须协调一致。我国的《反垄断法》自2008年正式实施以来，对于促进公平竞争产生了积极的作用。碍于《反垄断法》对私人诉讼的规定过于原则，我国反垄断法的私人实施没有发挥应有的作用。最高人民法院于2012年发布并实施了《关于审理因垄断行为引发的民事纠纷案件应用法律若干问题的规定》（以下简称垄断民事纠纷案件司法解释），该解释对我国反垄断私人诉讼的相关不足之处进行了部分的改进，可受害人在提起私人诉讼时仍困难重重,特别是在如何举证证明违法者垄断行为存在的证据上面。我们必须高度重视我国在反垄断法私人诉讼领域存在的问题和不足，在借鉴国外先进经验的同时要全面考虑我国的现实国情来完善反垄断法私人诉讼制度。建立界定原告资格的合理标准；建立诸如美国的三倍损害赔偿制度；实施举证责任倒置；建立有限的诉前禁令制度；完善反垄断行政机关与私人诉讼的衔接性规定。
[Abstract]:The private subject implementation of the anti-monopoly law is an indispensable way of implementing the anti-monopoly law with the same status as the public subject of the anti-monopoly law. The private subject's civil action is the private suit of the antimonopoly law when his interests are damaged by the illegal monopoly behavior of the monopolist. Different from ordinary civil action, the private action of antimonopoly law shows different legal characteristics in many aspects, such as the plaintiff's qualification, the distribution of burden of proof and so on. The anti-monopoly private lawsuit also has the dual relief function to the private relief and the social public welfare. There are significant differences between the implementation of private subjects and public subjects in the implementation of anti-monopoly law. In order to ensure the effective function of anti-monopoly law, the conflict between the two must be coordinated. Since its implementation in 2008, China's Antimonopoly Law has played a positive role in promoting fair competition. Due to the over-principle of private litigation in Anti-monopoly Law, the private enforcement of anti-monopoly law in China has not played its due role. In 2012, the Supreme people's Court issued and implemented the provisions on the Application of Law in handling cases of Civil disputes caused by Monopoly (hereinafter referred to as Judicial interpretation of Monopoly Civil disputes). This explanation has partially improved the deficiencies of private antitrust litigation in China, but the victim still has many difficulties in initiating private litigation, especially on how to prove the evidence of the existence of the violator's monopoly. We must attach great importance to the problems and deficiencies in the field of private litigation of anti-monopoly law in our country. We should consider the reality of our country to perfect the private litigation system of anti-monopoly law while learning from the advanced experience of foreign countries. To establish reasonable criteria to define the plaintiff's qualification; to establish a triple damage compensation system such as the United States; to implement the inversion of the burden of proof; to establish a limited system of pre-suit injunctions; and to improve the connection between antitrust administrative organs and private litigation.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.294
本文编号：2375414
[Abstract]:The private subject implementation of the anti-monopoly law is an indispensable way of implementing the anti-monopoly law with the same status as the public subject of the anti-monopoly law. The private subject's civil action is the private suit of the antimonopoly law when his interests are damaged by the illegal monopoly behavior of the monopolist. Different from ordinary civil action, the private action of antimonopoly law shows different legal characteristics in many aspects, such as the plaintiff's qualification, the distribution of burden of proof and so on. The anti-monopoly private lawsuit also has the dual relief function to the private relief and the social public welfare. There are significant differences between the implementation of private subjects and public subjects in the implementation of anti-monopoly law. In order to ensure the effective function of anti-monopoly law, the conflict between the two must be coordinated. Since its implementation in 2008, China's Antimonopoly Law has played a positive role in promoting fair competition. Due to the over-principle of private litigation in Anti-monopoly Law, the private enforcement of anti-monopoly law in China has not played its due role. In 2012, the Supreme people's Court issued and implemented the provisions on the Application of Law in handling cases of Civil disputes caused by Monopoly (hereinafter referred to as Judicial interpretation of Monopoly Civil disputes). This explanation has partially improved the deficiencies of private antitrust litigation in China, but the victim still has many difficulties in initiating private litigation, especially on how to prove the evidence of the existence of the violator's monopoly. We must attach great importance to the problems and deficiencies in the field of private litigation of anti-monopoly law in our country. We should consider the reality of our country to perfect the private litigation system of anti-monopoly law while learning from the advanced experience of foreign countries. To establish reasonable criteria to define the plaintiff's qualification; to establish a triple damage compensation system such as the United States; to implement the inversion of the burden of proof; to establish a limited system of pre-suit injunctions; and to improve the connection between antitrust administrative organs and private litigation.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.294
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