On 8^th May of 2012, the Supreme People’s Court (the “SPC”) issued the Regulations on Several Issues concerning the Law Application in the Hearing of Civil Disputes Arising from the Monopolistic Conduct (the “Judicial Interpretations”). By the Judicial Interpretations, the people’s court shall accept the lawsuit filed by the citizens for the monopolistic conduct; for the joint-price-increasing and other monopolistic conducts, the alleged company shall take the burden of proof. According to the statement of the SPC, the anti-monopoly lawsuit shall be no longer pre-conditioned by the administrative determination. The regulation will come into effect from 1^st of June. This is another major event after the enforcement of Anti-monopoly Law from 1^st August 2008, today, we will make introduce you the highlight of the new regulation.

I. No administrative determination before the lawsuit

The Anti-monopoly law regulates the investigation and punishment by the administration to the monopoly companies as well as other issues. But, it thereby leads to the argument that whether the lawsuit against the monopolistic conduct shall be preconditioned by the enforcement and determination by the administration. The Judicial Interpretation provides that when anyone suffering from the monopolistic conducts file 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. That means the lawsuit could be filed to demand the liability of tort by whenever there’s the evidence to the losses, and the civil monopolistic dispute lawsuit is not necessary with the precondition of the administrative enforcement.

II. The jurisdiction over the 1^st instance by the intermediate court in province capital

The latest Judicial Interpretation provides that 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. That means, unless the special designation, the civil monopolistic cases shall be governed by the intermediate court in the province capitals and the municipality directly under the control of the central government. For the group lawsuit, the court could try together. 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, and the transferred court may try the case together.

III. To strengthen the burden of prove of the monopoly companies

Judging from the concluded monopoly cases, we could see rare victory cases by the plaintiff and that mainly comes from the difficult evidence collection of the plaintiff. Therefore, the Judicial Interpretation makes the specific regulations on the issues concerning the distribution of the proof burden, facts exempted from proof, expert evidences. By the Judicial Interpretation, 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) , the defendant shall undertake the burden of proof about the effectiveness of the alleged monopolistic agreement in eliminating or restricting competition. That means the reversed burden of proof shall be applicable in the price limitation of cartel, limitation on the product manufacture and sales, sales market segmentation or raw material segmentation, limitation on the purchase of new technology, new equipment or the conduct of the limitation on developing new technology and product.

The plaintiff may submit the information released by the defendant as the proof to its dominant positions in the market, unless there’re adverse evidence. That regulation will make the publication of many companies as the evidence on the court. In the past, the court hearing the dispute of abuse of dominant position in the market (note: the link is in Chinese) between shushing.com and qidian.com in Shanghai refuse to accept the evidence of defendant’s publication material submitted by the plaintiff to prove the dominant position of the plaintiff, and that could not be so when it heard after the Judicial Interpretation.

Furthermore, the Judicial Interpretation also reduces the plaintiff’s burden of proof in the cases of the dominant position of the public companies and other operators with exclusive operation qualification. For example, the plaintiff shall no longer prove the dominant position of the companies with a long monopoly history.

By You Yunting

(Source: Chinaiplawyer.com)