Liu Xu on the "Supreme People's Court on the trial of monopoly civil disputes case certain issues related to application of law" problems -

Article eleventh Evidence involving state secrets, commercial secrets, personal privacy shall be kept confidential in accordance with the law or other content, the people's court may on its own authority or the application of the parties take no public hearing, to restrict or prohibit the copy, display, the lawyers only ordered to sign a confidentiality undertaking protection measures such as.

Problem 17 Law enforcement information as evidence in civil litigation

"Syndrome"Fourteenth the provisions of the third paragraph:

"The important evidence of operators according to the provisions of section second of the anti monopoly law forty-sixth antitrust enforcement agencies take the initiative to report about the monopoly agreement reached, and provides, not disclosed but it is necessary in this case as evidence to cross examination, the people's court may take the measures described in the previous paragraph."

"Anti monopoly law" forty-sixth paragraph second the operator is suspected of implementation of the monopoly agreement, can in order to get a fine relief, and take the initiative to law enforcement organs, and expose other offenders. This can greatly improve the efficiency of law enforcement "anti-monopoly law". While"Syndrome"The provisions in the third paragraph fourteenth is very conducive to the investigation ability and power limited civil main body burden of violating the "anti-monopoly law" behavior and the extent of damage.

A.UnfortunatelyMethod (release2012)5No. eleventh delete such provisions. This is for what consideration?

B.Delete"Syndrome"Fourteenth the provisions of the third paragraph of the civil subject, so whether can also provide relevant evidence request law enforcement agencies issued request remission of penalty in person?

C.If in order to protect the enthusiasm of the surrendered to surrender, whether can claim administrative organs willIf they provide about the other illegal monopoly agreements behavior evidence, open reading right, as the civil action evidence?

D.If the law enforcement organs of civil litigation the plaintiff based on"The anti-monopoly law" forty-sixth paragraph second unpublished evidence marking the right, and accepted as evidence of evidence in civil litigation, the defendant by the law enforcement agencies geological evidence, these evidence offered no proof, then (1The court may make) is different from the administrative law enforcement organs handling decision decision? (2If you can, whether or not) that the decision can be used as the defendant in administrative proceedings related directly advocate treatment decisions before the anti-monopoly law enforcement is wrong?

Method (release2012)5No. Article twelfth

Article twelfth The parties may apply to the people's court for one to two with the corresponding specialized expertise in court, on specific issues of the case are explained.

Problem 18 Professional appearance before the expert opinions

In order to provide the efficiency of the trial, the court may require the original defendant whether the professional prior to provide expert opinions for the judge, the other party in order to improve the efficiency of reading, testimony in court and accuracy, saving valuable time trial?

Problem 19 Quality certificate to the expert advice

A.For expert advice, whether written or oral, under cross examination, whether meet the conditions can be accepted?

B.Under what circumstances, expert opinion must be inadmissible, or the judge may asked experts to make consistent with expert opinion must form requirements?

C.If the expert explained in the previous trial in other occasions or academic journals that are not consistent, so whether can justify the claim does not adopt the expert advice? For exampleThe high court in the trial in Guangdong Qihoo v. Tencent abuse of dominant market positionWhen the,Questioning the plaintiff lawyers professional please for the defendant.

Method (release2012)5No. Article thirteenth

Article thirteenth The parties may apply to the people's court to entrust a professional institution or personnel on specific issues of the case to make a market investigation or an economic analysis report. Approved by the people's court, the parties may negotiate a professional institution or personnel; the consultation fails, designated by the people's court.

The people's court may provide relevant appraisal conclusion of civil procedure law and relevant judicial interpretations, reference, market investigation or report referred to in the preceding paragraph shall review and judge.

Problem 20 The market investigation or report to the appraisal conclusion

Method (release2012)5No. Thirteenth specify the designated third party can make market survey or an economic analysis report is positive, is also consistent with the international practice. But the specific operation is still a problem, independent consultants for example has a wealth of experience in domestic market and is familiar China involved in competition law of market research or economic analysis in the field of almost no, and data extraction is also a problem, more importantly, the results of this analysis judges and lawyers are able to understand and pick out the wrong assumption, hidden confusing data and modeling defects. Even with these difficulties, if can be gradually extended, believe that the judge lawyer can soon become familiar with the relevant professional knowledge and skills of analysis. Therefore, be the first to bear the brunt of the problem is how to take the first step.

A.Method (release2012)5No. Article thirteenth There is no clear, whether the judge can not intend to please the third party to carry out economic analysis and market survey, we decide to request the parties to do so. Then the judge whether there is such a compulsory designated third party market research and economic analysis of power?

B.Method (release2012)5No. Article thirteenth Does that mean if one party claims to invite the third party for economic analysis and market survey, then the other party even if the opposition, the judge can also be specified? Or is there only agreed to invite the third party for economic analysis and market survey, but only in the hire who, differences on how to implement the analysis of market investigation and economics, the court can only go to the designated specific third party?

C.If the court designated third partyEconomic analysis and market survey, then it must be the list of candidates recommended from the parties choose it, or can be completely free to specify?

D.Whether the parties can be assigned a third partyEconomic analysis and market survey?

E.The third partyCost leads to economic analysis and market survey, should be borne by whom?

F.The third partyEconomic analysis and market survey to make in how a period of time?

G.The third partyEconomic analysis and market research needs to meet the formal requirements of what?

Method (release2012)5No. Article fourteenth

Article fourteenth The monopolistic behavior, and causes losses to the plaintiff, according to the plaintiff's claim and the facts ascertained, the people's court may order the defendant to stop infringement, shall bear civil liability for compensation for the losses.

According to the plaintiff's request, the people's court may be the reasonable expenses for investigating, preventing monopoly behavior paid in compensation for losses.

Problem 21 The confiscation of illegal income and compensation payment

If the operators implement monopoly by the anti monopoly law enforcement agency made the punishment, and the confiscation of illegal income, so the operator again for the same illegal act is damage to the parties prosecute:

A.Whether the defendant to the illegal income confiscated filed a plea?

B.Whether the defendant can pay compensation to the plaintiff, the illegal income requirements to law enforcement agencies to recover the corresponding amount?

Problem 22 The parent company of joint and several liability of damage compensation

A.If the court finds that a monopoly is subsidiary of implementation, so whether the parent company to its degree of joint and several liability?

B.If the illegal act is the subsidiary of parent company is the implementation of pre acquisition, before the acquisition has been terminated?

C.If the illegal act is the subsidiary of parent company was implemented before the acquisition, after the acquisition has not yet terminated?

Method (release2012)5No. Article fifteenth

Article fifteenth The compulsory provisions of the contract, the articles of association of the industry in violation of the anti monopoly law or other laws and administrative regulations, the people's court shall determine its invalid.

Problem 23 Contract and articles of association were determined to be in violation of "anti monopoly law" after effect problem

Method (release2012)5No. Fifteenth only the provision, the contents of the contract and the articles of association were determined to be in violation of "anti monopoly law", should be recognized as invalid. So the problem is:

A.Whether a defendant or a bona fide third party may claim related to the contents of the contractAnd the articles of association, only those directly and in violation of "anti monopoly law" behavior directly related part invalid?

B.If it is found to be invalid, so should be invalid from the beginning, or from one point in time?

C.If the illegal act while occurred primarily in the "anti-monopoly law" before the entry into force, but the behavior continues to the "anti-monopoly law" after the entry into force, or the effect of "anti monopoly law" continuation effect, that the action should when invalid?

D.HeWith the content and the articles of association were determined to be in violation of "anti monopoly law" afterOn the basis of other legal acts, the contract or agreement and articles of association, such as real rights, intellectual property rights transfer, contract behavior, even setting up a company, are all invalid or partially invalid? Or be revoked?

E.Method (release2012)5No. Fifteenth only the provision, the contents of the contract and the articles of Association"Etc."Determined to be in violation of "anti monopoly law", should be recognized as invalid. Then this" Etc."What is mean?

F.The establishment of a joint venture, or minority equity, if does not conform to the antimonopoly examination of undertaking concentration declaration standards, but in fact constitutes a monopoly agreement, or disguised to cooperative behavior, if be considered a violation of "anti monopoly law", then it can also be in accordance with theMethod (release2012)5No. Article fifteenthWhile the legal acts of the company law is invalid?

G.If the violation of "anti-monopoly law," declared the contract invalid from the beginning so all restitution will bring more losses to consumers, should be how to deal with? For example, a market dominant enterprises to squeeze out competitors with predatory pricing, price to attract customers. Such behavior is found in violation of "anti monopoly law", before the transaction is low price is not reasonable. If the transaction has already been consumed or depreciation, or unable to return to the original, so whether the consumer to the implementation of predatory pricing will pay the difference?

Method (release2012)5No. TenthSixArticle

Article sixteenth Caused by the monopoly right to claim damages from the period of limitation of action, the plaintiff knew or should have known the infringement on the rights of the date of calculation.

The plaintiff to the anti monopoly law enforcement agency report alleged monopolistic behavior, the limitation of action from the report date interrupt. The anti monopoly law enforcement agency decided not on file, revoke the case or decide to terminate the investigation, the period of limitation of action from the plaintiff knew or should have known that not filing, revoke the case or to terminate the investigation date of recalculation. The anti monopoly law enforcement agency investigation determined that constitutes a monopolistic conduct, the period of limitation of action from the plaintiff knew or should have known that the anti monopoly law enforcement agency that constitute a monopoly of the legal decision the date of recalculation.

The prosecution alleged monopolistic behavior has lasted for more than two years, the defendant raises a defense against limitation of action, damages should be from the plaintiff to the people's court has indicted two years calculated forward calculation.

Problem 24 Litigation prescription starting

Method (release2012)5No. TenthSixThe provisions of paragraph 1:

"During the litigation request compensation for damage from the monopoly, the plaintiff knew or should have known the infringement on the rights of the date of calculation."

A.In view of the fact that many citizens have very little understanding of the "anti monopoly law", the anti monopoly law enforcement is lagging behind, can be counted on one's fingers and has published case, the transparency of law enforcement is very low, so how to identify"The plaintiff knew or should have known the infringement on the rights of the day"?

B.The anti monopoly law enforcement agency and the characteristics of monopolistic behavior, but not publicly disclosed, whether the victim can claim it does not know their interests infringed?

C.If the anti monopoly law enforcement agency will one relates to the monopoly agreement case, mistakenly applicable provisions relating to "anti-monopoly law" the third chapter monitoring the abuse of market dominant position, for exampleWeifang two pharmaceutical companies suspected of abuse of dominant market positionHypothesis, shall be regarded as the upper horizontal competition restriction agreement of raw material suppliers, and downstream and Weifang two pharmaceutical companies agreed limit retail and basic drug bidding quotation of enterprises, should be based on "anti-monopoly law" has been dealt with, but in fact not by the national development and Reform Commission office. Then, decided to law enforcement agencies such treatment, in the final effect is determined, on the other should be punished without being penalized enterprises, the limitation of action related rights of victims when starting?

D.If there are some violations specific monopoly civil subject has filed a civil lawsuit, but litigation results not in the news coverage, the other is whether the same acts of civil subject can claim it does not know their interests infringed?

E.There is no specific management arrangements for enterprises to make right or voting rights of the small shareholders can punishment in the anti monopoly law enforcement agencies of the enterprises, both advocate the do not know the enterprises engaged in the monopoly behavior, and then only with the punishment decision date of litigation prescription starting point, requests the enterprise executive compensation for the manipulation of the monopoly behavior enterprises engaged in for corporate and shareholder losses?

Problem 25 The limitation of action for the operator according to the "anti-monopoly law" forty-fifth roads make operators promise and interrupt

Method (release2012)5No. Sixteenth the provisions of the second paragraph:

　　"The plaintiff to the anti monopoly law enforcement agency report alleged monopolistic behavior, the limitation of action from the report date interrupt. The anti monopoly law enforcement agency decided not on file, revoke the case or decide to terminate the investigation, the period of limitation of action from the plaintiff knew or should have known that not filing, revoke the case or to terminate the investigation date of recalculation. The anti monopoly law enforcement agency investigation determined that constitutes a monopolistic conduct, the period of limitation of action from the plaintiff knew or should have known that the anti monopoly law enforcement agency that constitute a monopoly of the legal decision the date of recalculation."

In order to2011YearsThe national development and Reform Commission investigation in Telecom and Unicom suspected of violating the "anti-monopoly law" the abuse of a dominant marketBitThat's okFor theAs an example.

A.So involved in the anti-monopoly law enforcement agencies to investigate alleged monopoly behavior and the interruption of limitation of action, if the investigation involves only a part of some interrelated monopoly behavior of limitation of action, then other parts of illegal behavior whether should interrupt? For example, the national development and Reform Commission2011Annual survey in Telecom and Unicom, the two companies suspected of CCTV announced its pricing discrimination against "anti monopoly law", but no clear in the telecommunications in Guangdong of CRC implementation measures and broken network, telecommunication and Unicom cleaning flow penetration behavior carry on the investigation, but did not mention whether the suspicion Telecom and China Unicom on the Internet two wholesale market, three market retail link existing segmentation market, customers and price coordination behavior. So the national development and Reform Commission in the investigation of alleged discriminatory pricing behavior, this can relate to and no clear violations of public inquiry, whether there exists the limitation interrupt problem?

B. 2012In spring, the national development and Reform Commission relevant comrades in different situations in different forms and revealed to the public has been accepted in Telecom and Unicom madeManagement'Promise, but no formal announcement related investigation report and the decision to suspend the investigation. Such informal disclosure to suspend the investigation, it also means that the aging of re starting? Should press operators for five year commitment, in five years by the national development and Reform Commission finally announced the termination of investigations, re starting the limitation of action?

C. 2012In spring, the national development and Reform Commission accepted in telecommunications and Unicom operator in making commitments, mainly is to protect the lower mobile subsidiary Chinese Tietong broadband Internet wholesale price, and not involved in other Internet access business, such a commitment and the corresponding to suspend the investigation, the other may be damaged by China Unicom and China Telecom unreasonable broadband wholesale prices of enterprises, the limitation of action is also interrupted?

D. 2012In the spring, telecom and Unicom made in reducing broadband access in three levels of markets to the national development and Reform Commission, the consumer terminal access to the Internet retail price adjustments, to reduce a certain amplitude in five years the same transmission rate. But this commitment itself is in the lowest limit the Ministry for the two companies in the broadband strategy planning, and is not a wholesale pricing policy should be investigated and dealt with two original broadband market. So irrelevant answer, with broadband strategy established state funded real change reduce consumer internet access fees in the name of the operator commitment, adopted by the national development and Reform Commission, and declare to suspend the investigation, then, does this mean that the survey wholesale pricing behavior on the two secondary market has completely ended, or do not check out the result? If it is, then from the national development and reform commission accepts that the promised date, by the limitation of suspected abuse of dominant market position damage of enterprises in broadband access in two levels of markets is equal to the re calculated. Otherwise, it means that, in the five years after the national development and Reform Commission announced the termination of the investigation or within five years to re start the investigation, the limitation of action only to re start date.

Problem 26 Defense against limitation

Method (release2012)5No. Sixteenth the provisions of the third paragraph:

"The prosecution alleged monopolistic behavior has lasted for more than two years, the defendant raises a defense against limitation of action, damages should be from the plaintiff to the people's court has indicted two years calculated forward calculation."

This rule is easy to cause misunderstanding?

If the plaintiff2012Years10Month19Suing the2012Years10Month18Monopoly the rights and interests of an injury, just know, this behavior occurs in the2008Years10Month15To2010Years10Month18Day. Then the plaintiff may apply to the court for compensation should be calculated?

"Syndrome" is obviously in the law interpretation (2012)5No. Abbreviate terms

"Sign" Tenth

Where the alleged monopolistic behavior that the victim has the loss of all or part of transfer to others, it shall bear the burden of proof.

Problem 27 The loss of the victim on the burden of proof

"Syndrome"Article tenthRegulations.Where the alleged monopolistic behavior that the victim has the loss of all or part of transfer to others, it shall bear the burden of proof."ButMethod (release2012)5No. Delete such provisions. Then treat"Where the alleged monopolistic behavior that the victim has the loss of all or part of onto others"The situation, who will bear the burden of proof?

"Sign" Eleventh

"Sign" the provisions of article eleventh:"

Has been confirmed by the people's court legally effective judgment fact, party claims that the facts established in the cases of civil disputes related to monopoly, without the burden of proof, but the other party has sufficient evidence to prove otherwise.

The anti monopoly law enforcement agency recognized that determine the effectiveness of monopoly conduct of the fact, with reference to the application of the provisions of the preceding paragraph.

The anti monopoly law enforcement agency managers surveyed based commitment decides to suspend the investigation, not to the operator's commitment to direct the presumption of the existence of monopoly behavior."

Problem 28 Law enforcement agencies to suspend the investigation, the evidence can be used as evidence in civil procedure

If"The anti monopoly law enforcement agency recognized that determine the effectiveness of monopoly conduct of the facts","Party claims that the facts established in the cases of civil disputes related to monopoly, without the burden of proof, but the other party has sufficient evidence to prove otherwise." Then it can also be considered"The anti monopoly law enforcement agency managers surveyed based commitment decides to suspend the investigation"The decision ultimately determine the potency, the relevant civil plaintiff may request the law enforcement agencies to open the evidence collection in the related case marking the right, the limited capacity of the plaintiff evidence to apply to the court for the civil compensation and the cessation of the infringement claim?

"Sign" TenthTwoArticle

"The alleged monopolistic behavior and his agent ad litem, meet the following conditions may apply to the people's court for a ruling, the monopoly behavior, shall be ordered to submit relevant evidence:

(a) the applicant has submitted evidence to prove their due to the monopoly behavior and the possible damage;

(two) the applicant after reasonable efforts due to objective reasons are still unable to obtain the application shall submit evidence;

(three) evidence and case application shall be submitted to the relevance, and necessary for the applicant to prove the claim or claims;

(four) there is evidence that the applicant apply for to hold the evidence submitted.

The respondent refuses to submit the evidence, the applicant claims that the evidence is unfavorable to the respondent, the people's court according to the specific case of the establishment. The respondent refused to carry out the people's court according to the provisions of the preceding paragraph shall be handled in accordance with the ruling, the 102nd civil procedure law."

Problem 29 The court ordered the monopoly people submit relevant evidence

"Syndrome" provisions of article twelfth of the:

In theMethod (release2012)5No. In theDelete "sign" Twelfth is for what consideration? If there is a "sign" Twelfth involving several cases in practice, the plaintiff can made such a request, the court ordered the monopoly behavior requirements to submit relevant evidence?

"Sign" Fifteenth

Where the alleged monopolistic behavior has the anti monopoly law enforcement agency survey but did not constitute a monopoly, the people's court shall still undertake a comprehensive review on the litigant request and judgment.

Problem 30 The people's court whether can maintain the anti-monopoly law enforcement does not constitute a monopoly behavior?

"Regulations" article fifteenth syndrome is very positive, can basically eliminate the anti monopoly law enforcement agency fails to recognize the "anti-monopoly law" no type explicitly prohibit monopolistic behavior, also can be in the anti monopoly law enforcement agency for a variety of reasons not as, through judicial means, to the dispute by way of relief, through judicial protection to resolve social contradictions, social problems or ease economic disputes may lead to even mass incidents. But the provisions of such good, inMethod (release2012)5No. ByDelete. Then delete the "what is" prescribed in article fifteenth considerations?

"Sign" sixteenth

The anti monopoly law enforcement agency to investigate alleged monopolistic behavior, if necessary, the people's court according to the specific situation of the case, decided to discontinue the action.

Problem 31 The people's court to suspend litigation according to the needs of the anti monopoly law enforcement agency

A."Sign" the provisions of article sixteenth is not included in theMethod (release2012)5No. In the past, is for what consideration?

B.If an antitrust investigation of the monopoly law enforcement agency is in favor of the plaintiff, the plaintiff can apply to the court for request a suspension of action?

C.If it relates to foreign competition policy department in charge of the investigation of a Multi-National Corporation, and the related research to the plaintiff in the court proceedings in china,Whether the plaintiff may request the court to suspend litigation, or whether the court can decide to discontinue the action?Such as Europe and the United States are the Google search service and mobile phone patent authorization service, before the end of the survey, consumers or operators in China Google related violation of China's "anti-monopoly law" behavior in our country court case.

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