The Supreme People’s Court issued Regulation on Several Issues Concerning the Application of Law in the Trial of Civil Cases arising from Monopolistic Conducts yesterday and the new judicial interpretation of Anti-Monopoly Law will take effect on 1st June, 2012. We have translated the Chinese version into English as follows:
Regulation on Several Issues Concerning the Application of Law in the Trial of Civil Cases arising from Monopolistic Conducts
To ensure the proper judgment of civil disputes arising from the monopoly, prevent monopolistic conducts, protecting and promoting fair competition in the market, safeguarding the interests of consumers and social public interests, this regulation is enacted according to the relevant regulations such as the Anti-monopoly Law of the People’s Republic of China, the General Principle of the Civil Law of the People’s Republic of China, the Law of the People’s Republic of China on Tort Liability, the Contract Law of the People’s Republic of China and the Civil Procedural Law of the Peoples Republic of China.
Article 1 The civil disputes arising from the monopoly regulated in the law (the “civil monopoly dispute cases”) shall refer to the civil lawsuit filed by the individual, legal person or other organizations for the losses coming from the monopoly and the violation against the Anti-monopoly law by the contract or the industry rules.
Article 2 When the plaintiff files the civil lawsuit directly or files the lawsuit after the effect of the decision made by the Anti-monopoly enforcement administration to the determination of the monopoly, also other conditions for the case filing are met, the people’s court shall accept the case.
Article 3 The intermediate courts of the capital cities of the provinces and autonomous regions, within the municipalities, of the cities specifically designated by the state plan directly under the Central Government and the intermediate courts designated by the Supreme People’s Court shall have jurisdiction over civil monopoly dispute cases as the courts of first instance
The primary court may have the jurisdiction over the first instance of the civil monopoly dispute cases after the approval of the Supreme People’s Court.
Article 4 The territorial jurisdiction over the civil monopoly dispute cases shall be determined according to the jurisdiction rules in the Civil Procedural Law, relevant judicial explanations related to tort dispute cases and contract dispute cases.
Article 5 In civil dispute case, of which the subject matters are not monopolistic dispute, provided the defendant defends or files a counterclaim based on the monopolistic conducts conducted by the plaintiff, and the people’s court where the case are filed do not have jurisdiction over civil monopoly dispute cases, the case shall be transferred to the people’s court with jurisdiction if there are evidence for the defense or counterclaim of the defendant or the ruling of the case would be based on Anti-monopoly Law.
Article 6 Under the circumstance that two or more plaintiffs file lawsuits separately to the same people’s court with jurisdiction over one monopolistic conduct, the court may try these cases together.
Under the circumstance that two or more plaintiffs file lawsuits separately to different people’s courts with jurisdiction over one monopolistic conduct, the later courts shall within seven days after knowing the first case filing decide on transferring the case to the court which accepted the first case;
The transferred court may try the case together. The defendant shall actively submit the information of the case filing in other courts in the phrase of defending.
Article 7 Where the alleged monopolistic conduct is found to be the monopolistic agreement in accordance with the conditions stipulated in Article 13, paragraph 1(1)—(5) and Article 14 (1)(2) of Anti-monopoly Law, the defendant shall undertake the burden of proof about the effectiveness of the alleged monopolistic agreement in eliminating or restricting competition.
Article 8 Where the alleged monopolistic conduct is found to be the abuse of dominant market positions regulated in the paragraph 1 of Article 17, the plaintiff shall undertake the burden of proof of the dominant market positions of the alleged conductor in that relevant market and that the alleged abuse of dominant market positions.
The defendant shall take the burden of proof when it pleading for the reasonability of the conduct.
Article 9 Where the alleged monopolistic conduct is found the abuse of the dominant position in the market by the public enterprise or other operators with monopolistic position, the people’s court may preliminarily determine the dominant market positions of the alleged conductor with the reference to the market structure and competition conditions unless the conductor has sufficient evidence to prove otherwise.
Article 10 The plaintiff may submit the information released by the defendant as the proof to its dominant positions in the market. And the people’s court may determine the dominant market positions of the conductor when the information could demonstrate the defendant’s dominant position in the relevant market, unless the conductor has sufficient evidence to prove otherwise.
Article 11 The evidence of the cases concerning state secrets, business secrets, personal privacies and other contents which shall be confidential, the people’s court may according to its power or by the party’s application to hear the case not in public, restrict or prohibit to copy the evidences, present evidence only the counsel and ordering for submitting confidential promises and other effective methods to protect the evidences.
Article 12 The parties may apply to the people’s court for the appearance of persons with professional knowledge to illustrate the professional issues involved in this case.
Article 13 The parties may apply to the people’s court for market investigation or economic analysis report made by entrusted independent professional organizations or persons; the parties may also entrust independent professional organizations or persons through negotiation on the approval by the people’s court; or to be appointed by the people’s court when no consensus could be concluded between the parties after the negotiation.
The people’s court may judge the reports and investigations in accordance with the conditions in Civil Procedural Law and relevant judicial explanation concerning expert conclusions in the last paragraph.
Article 14 Once the defendant committed monopolistic conducts and infringed the plaintiff’s legitimate rights, the people’s court shall determine that the defendant committing monopolistic conducts bear civil responsibilities of aggrieving cease and losses compensation, in according to the claims of the parties and the investigated facts, pursuant to General Principles of Civil Law, Tort Liability Law and Anti-monopoly Law.
According to the claims of the plaintiff, the people’s courts may order to include the reasonable expenses for the investigation and prevention on the monopolistic conducts in the compensation.
Article 15 The people’s court shall determine the invalid of the alleged contract, industry rules and other regulations against the coercive regulations in the Anti-monopoly law or other laws and regulations.
Article 16 The statute of limitation for civil monopoly disputes shall be calculated from the day when the aggrieved parties knew or should have known the aggrieving.
The limitation of actions shall be interrupted when the plaintiff reported the alleged monopolistic conducts to the antimonopoly authorities. Whereas the antimonopoly authorities decide that the cases are inadmissible, should be dismissed or to stop the investigation, the statute of limitation shall be calculated anew from the day when the aggrieved parties knew or should have know the decision of the anti-monopoly authorities. Whereas the antimonopoly authorities decide that the monopolistic conducts are established, the statute of limitation shall be calculated anew from the day when the aggrieved parties knew or should have know the decision of the anti-monopoly authorities.
Whereas the aggrieved parties file a claim after 2 years of the monopolistic conduct, and that’s taken as the pleading by the defendant, the compensation shall be calculated from 2 years earlier prior to the date when the lawsuits are filed.
The Chinese version: http://news.sina.com.cn/c/2012-05-08/141824384755.shtml
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Author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
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