纵向限制协议限制排除竞争效应的举证责任分配——以锐邦诉强生垄断一案为例-the allocation of burden of proof for the restriction of exclusion of competition effect by vertical restriction agreement - taking the case of ruibang v johnson johnson monopoly as an.docxVIP

PAGE PAGE 1 Abstract With the development of the market economy, monopoly disputes become a hot issue in people’s lives. China’s Anti-monopoly Law has been enacted for seven years, while there are few anti-monopoly private litigations and all of them end in the plaintiff loses. The first longitudinal restrictive agreement lawsuit just emerged in 2013 and it is the only case in favor of the plaintiff so far it is Boiling Chemical Company vs. Johnson Johnson monopoly case. In the case, who should bear the burden of proof of the restrictions and exclusion competition effect of vertical restrictive agreement is the greatest controversy of the case. Regulation of Application Law of Supreme Peoples Court in the Trial of Civil Dispute Cases Caused by Monopoly Behavior solves the “blank” state that there is no law can be based on the burden of proof allocation in the process of horizontal monopoly agreements litigations. However, the burden of proof system that “he who advocates is the burden of proof” of the traditional civil litigation is still applicable in longitudinal restrictive agreement. The particularity of monopoly disputes depends on the difficulty of plaintiff proof and proof of restrictions and exclusion competition effect of vertical restrictive agreement; if the burden of proof is allocated to plaintiffs, it is bound to make plaintiffs difficult to win a lawsuit; thus, victims are reluctant to mention the anti-monopoly lawsuit; not only the victims’ legitimate rights and interests cannot be guaranteed, but also it is not conducive to the progress of anti-monopoly litigation in China. Therefore, the paper is of great research value. The paper mainly discusses the allocation of burden of proof of restrictions and exclusion competition effect of vertical restrictive agreement from the following four parts. Part one introduces the facts of Boiling Chemical Company vs. JNJ monopoly dispute case and the overview of two levels of courts, analyzes the status quo o