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Research on Constituent Elements of Anti-Monopoly Law Damage Compensation

Author: GuHui
Tutor: XuShiYing
School: East China University of Political Science
Course: Economic Law
Keywords: Anti-monopoly law damage compensation Civil damage compensation Constituent elements Law comparison
CLC: D922.294
Type: Master's thesis
Year: 2011
Downloads: 127
Quote: 0
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Abstract


In China, provision about anti-monopoly law damage compensation is very brief. Article 50 of Anti-Monopoly Law provides that if operators do anti-monopoly behavior which cause losses to others, shall bear civil liability. With this simple provision litigation of anti-monopoly law damage compensation will be difficult to implement and the effect of private execution of anti-Monopoly law will be influenced. If constituent elements are not clear anti-monopoly law damage compensation system will be lack of solid theoretical foundation as support. This article researches constituent elements of anti-monopoly law damage compensation and solves difficult problems existing in the real operation. Finally formats constituent elements theory of anti-monopoly characteristics in order to serve the anti-monopoly law damage compensation system and to promote the private implement of anti-monopoly law.This article is divided into four chapters. One context is comparing the existing legal systems in foreign countries to improve our legal system, and the other context is researching from the general civil damage system to the particular anti-monopoly damage system. Integration of both contexts is that firstly defines constitute elements of anti-monopoly law damage compensation; Secondly, gives the comparison of existing legal systems in foreign countries; Thirdly, compares anti-monopoly law damage compensation system with the civil damage compensation system; Finally, concludes that constituent elements of anti-monopoly law damage compensation can not directly follow the civil law, it should be regulated by the anti-monopoly law, then draws national legislative experience, gives proposals according to China’s economic environment and competition policy.The first chapter introduces the basic theoretical issues of constituent elements of anti-monopoly law damage competition, explores from civil damages theory and indicates that the definition and characteristics of anti-monopoly law damage competition. Then defines specific constitute elements which anti-monopoly law damages compensation has. Finally analyzes reflection of these elements on the existing legislation.The second chapter compares the legislation and the implementation of other countries’anti-monopoly law damages compensation. On the aspect of the subject, instructs the claimant’s eligibility criteria, whether the consumer and community groups have the right to seek damage compensation, and defines the scope of persons to be liable for the damage compensation commitment. On the aspect of the subjective liability principles, Germany and the United States are as the representative of fault liability mode, Japan is as the representative of non-fault liability mode, Taiwan is as the representative of increase the responsibility of the intentional mode. Then it defines the scope of actionable illegal violations which caused damage compensation. On the aspect of causality based on the facts of damage, indicates the nature and scope of the monopoly damage and the definition of causation and other issues.The third chapter mainly compares the differences between anti-monopoly damage compensation and civil damage compensation. Firstly, there are several models of the legal provision, some directly regulate antitrust damages in civil law, and some give special provisions in the anti-monopoly Law. Secondly, there are differences between the legal purposes and the fill idea of civil law should not apply to antitrust law. Thirdly, the differences between the purposes lead to the differences between the constituent elements, so thinking of the existence of competing between civil damages and anti-Monopoly damages is triggered.The fourth chapter makes recommendations to the improvement of anti-monopoly damages compensation system in our country, because there are many defects in article 50 of Anti-Monopoly Law which can not meet the needs of the implement. Then how to define the civil liability in anti-monopoly law? I think economic law liability is independent and anti-Monopoly law damage compensation belongs to economic liability. The purpose of anti-Monopoly law damage compensation should be consistent with the purpose of anti-monopoly law. We should make clear definition of every element. The improvement of constituent elements of anti-Monopoly law damage compensation and related supporting provisions have important significance to the implement of anti-monopoly law.

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