滥用市场支配地位诉讼举证困境及对策研究——基于67份判决书的实证分析

The Dilemma of Providing Proofs for Lawsuits against Abuse of Market Dominant Position and the Countermeasures:An Empirical Analysis of 67 Written Judgments

实证研究结果表明,中国滥用市场支配地位诉讼确实存在原告举证难、胜诉率过低、损害赔偿的象征性等问题。由于滥用市场支配地位之诉的证据具有“变动不居”的特点,常常使得原告无从入手,缺乏证据收集能力的原告易将新闻报道和公知事项直接当作证据使用。这主要是在滥用诉讼中一概适用举证责任分配的一般规则、忽略了滥用诉讼的特殊性所致。为了充分发挥反垄断民事诉讼应有的救济价值,有必要通过丰富证据收集手段、减轻原告举证责任、改进推定证据规则、完善滥用共同市场支配地位适用条件等相关实体规定以破解原告举证困境,畅通原告救济渠道。

The results of an empirical research show that the lawsuits against abuse of market dominant position in China do have some problems,such as the plaintiff being difficult in providing proofs,the rate of winning the lawsuits being too low,and the symbolic compensation being damaged,etc..Because the proofs for the lawsuits against the abuse of market dominant position have the characteristics of“changeable”,plaintiffs are often in the position of being difficult?to get started.The plaintiffs who lack the ability to collect proofs will?easily use news reports and publicly known matters as evidences.This is mainly due to the general application of the general rules for distribution?of proof?burden in the lawsuits against abuse of market dominance,while the particularities of such cases are neglected.In order to give full play to the relief values that antitrust civil litigations should have,it is necessary to crack down the proof-providing dilemma and to clear the relief channels for the plaintiffs by enriching the means for evidence collection,reducing the burden of proof-providing on the plaintiffs,improving the rules of presumptive evidences improving the applicable conditions for the lawsuits against abuse of common market dominant position and other related substantive rules.