Huang Yong: Professionalism in China’s w88 casino civil litigation trials
(Source: "Legal Daily" 2014-6-25 Law w88 casino Edition)
2014Year5month24Sunday25Day,Competition Law Center of w88 casino、ICTCo-sponsored by Industrial Competition Laboratory, the Intellectual Property Division of the Supreme People's Court is the supporting unit "2014China Antitrust Civil Litigation Forum” was grandly held in Beijing. During the two-day meeting, more than 30 judges from the Supreme People's Court and local high courts, as well as judges from the U.S. Federal Court of Appeals, officials from the Federal w88 Commission and the Department of Justice, and more than 200 Chinese and foreign scholars and practitioners conducted in-depth discussions on cutting-edge issues such as "the relationship between antitrust administrative enforcement and civil litigation", "the competitive impact of most-favored nation treatment clauses and analysis of litigation cases", "the application of economic analysis in antitrust litigation", and "due process in antitrust civil litigation" around the professionalism of antitrust civil litigation trials.
The relationship between w88 casino administrative enforcement and civil litigation
Judge Zhu Li of the Intellectual Property Court of the Supreme People's Court pointed out that my country's current anti-monopoly civil litigation and administrative law enforcement are running in parallel, and the relationship between the two is cooperation, coordination and supervision. First of all, civil litigation and administrative law enforcement can achieve complementary functions in the implementation of w88 casino laws, and they need to strengthen cooperation with each other. Civil litigation can alleviate the shortcomings of limited administrative law enforcement resources, and administrative law enforcement's active investigation of cases can provide factual basis for the trial of civil litigation cases. Secondly, when civil litigation and administrative law enforcement intersect, mutual coordination between the two is required. The court can use the rulings made by the administrative law enforcement agency as a reference to determine the facts. Finally, the supervision of administrative law enforcement by civil litigation is represented by the judicial review of administrative procedures by the courts. In judicial review, the court will usually respect the ruling of the administrative agency, but as the final arbiter, the court has the power to review the case and make a ruling on whether the administrative agency's substantive determination and enforcement procedures are legal.
Professor Shi Jianzhong of China University of Political Science and Law affirmed the important role of the commitment system and the leniency system in the anti-monopoly law. However, in anti-monopoly civil litigation, the plaintiff may require the administrative agency to provide a commitment and evidence submitted by the person who surrendered. If the administrative law enforcement agency provides comprehensive evidence, it may shake the foundation of these two systems. Therefore, it is necessary to balance the disclosure of evidence and the protection of the plaintiff's rights.
Deputy Leader of the Expert Advisory Group of the Anti-Monopoly Committee of the State Council, Professor Huang Yong of the Law w88 casino of the w88 casinoIn the summary, it was stated that in the future there may be overlap or even conflict between administrative law enforcement and anti-monopoly civil litigation. It is necessary to uphold the concept of the rule of law, pay attention to the supervision function of the court, prevent the abuse of administrative power, and truly realize the dominance of the market economy and the correct implementation of competition policies.
The competitive impact of most-favored-nation clauses
Deputy Attorney General of the State of California, United StatesEmilio Varaninipointed out that the concept of "most-favored-nation clause", which originally belonged to the scope of international economic law, has been included in the scope of w88 casino law with the cases of digital book publishing, online travel, insurance, e-commerce and other cases that have occurred in the Internet field. In the sense of w88 casino lawMFNThere are two main types of clauses. The first category is “the seller’sMFNTerms” refers to the seller during the transaction(Supplier)To the buyer(Distributor, retailer or agent)Commitment, or the buyer requires the seller to provide the best trading conditions. The second category is “buyer’sMFNTerms" refers to the buyer taking the initiative to make a commitment to the seller during the transaction process, or the seller asking the buyer to provide the best transaction conditions.
Charles, USA·Wang Xiaoru, director of River Economic Company, pointed out,MFNTerms may promote competition, but may also exclude or restrict competition. In promoting competition,MFNTerms can help reduce the price of goods or services, reduce the transaction costs of enterprises due to price negotiations, and effectively reduce the risks caused by price fluctuations. In restricting competition,MFNThe terms may block the market and constitute a market exclusion effect. WhereasMFNDue to the dual nature of 14604_14653| clauses, competition regulatory authorities in various countries adopt a cautious attitude in defining their nature and the related restrictions on competition issues caused by them.
Deng Fei, a partner of Edgeworth Brokerage Company in the United States, believes that the use of network distribution model settings in the Internet fieldMFNTerms have become an important means of competition for some operators. The particularity of the Internet is important for the network distribution modelMFNThe characterization of the terms has a greater impact. These particularities are mainly in the oligopoly competition situation and free pricing strategy of the Internet industry.
Ding Wenlian, a judge of the Shanghai Higher People’s Court, said that although there has not yet been any involvement in the Internet field in our countryMFN, but competition law enforcement agencies and courts must be prepared to accept challenges in this regard. On the one hand, it is necessary to refer to foreign cases and the experience of competition regulatory agencies in various countries; on the other hand, it is necessary to conduct an economic analysis of the case based on the competitive characteristics of China's Internet industry.
The application of economic analysis in w88 casino litigation
Partner of Cleary Law Firm in the United StatesNicholas LevyBy sorting out the historical evolution of economic analysis used by the Court of Justice of the European Union in w88 casino litigation, it is shown that the Court of Justice of the European Union previously relied on the allocation of the burden of proof to hear w88 casino cases, but recent developments have made economic analysis a necessary step in w88 casino litigation. This reveals that the EU Court of Justice needs a considerable process from its initial understanding of economic analysis to its gradual acceptance and final widespread application, and it cannot be achieved overnight.
Senior Judge of the United States Court of Appeals for the District of ColumbiaDouglas H Ginsburgpointed out that courts in major competition jurisdictions around the world have been working hard to strengthen the training of judges in economics, and by introducing economists as jury members or trial members in w88 casino litigation, they have effectively made up for the shortcomings of judges in using economic analysis in w88 casino litigation.
Economic Advisor to the Commissioner of the U.S. Federal w88 CommissionJoanna TsaiDoctor combines more specific relevant market definitions and fair, reasonable and non-discriminatory patent royalties(FRAND)Two specific questions illustrate the important role of revealing economic analysis.Joanna Tsaipointed out that the hypothetical monopolist test and critical loss test in relevant market definition are two commonly used economic analysis methods. These tests are conducive to quantitative analysis of competition effects to determine the degree of impact of monopolistic behavior on competition.
President Song Jian of the Intellectual Property Tribunal of the Higher People’s Court of Jiangsu Province pointed out that the emphasis on economic analysis in w88 casino law is a step-by-step process. In the early stages of anti-monopoly law enforcement, law enforcement agencies are more inclined to apply the principle of per se illegality and take action against suspected monopoly behavior“One size fits all”With the accumulation of law enforcement experience and the understanding of economic laws and industry conditions, law enforcement agencies are more inclined to apply the principle of reasonable analysis and use economic analysis to determine the damage to competition caused by abuse of market dominance, thereby making w88 casino administrative law enforcement and justice more professional and refined.
Due Process in w88 casino Civil Litigation
Senior Judge of the United States Court of Appeals for the District of ColumbiaDouglas H. Ginsburgpointed out that in w88 casino civil proceedings, attention needs to be paid to issues such as overcoming procedural delays, maintaining the neutrality and independence of the adjudicator, and protecting the parties’ right to cross-examine. In addition, due process also relies on the court's high transparency, objective treatment of case evidence, avoidance of the influence of political pressure, and adequate supervision and constraints.
Deputy Assistant Secretary of Justice of the United StatesLeslie Overtonbelieves that a fair and transparent adjudication process can enhance the rationality and legitimacy of the final adjudication agency's decision-making. All administrative and judicial actions involving w88 casino, whether hearings, investigations, or civil litigation, should adopt due process. Due process can improve the level and quality of judgments and will also have a positive impact on the industry.
Judge Ding Wenlian of the Shanghai Higher People’s Court pointed out that due process is the most important legal rule to protect citizens’ rights from infringement, and judges should cherish the procedural rights granted to parties by the law. As far as the practice of Chinese courts is concerned, the disclosure of cases and procedures and the concern for efficiency are all manifestations of due process. Of course, the law does not have specific provisions on the weak constraints on the parties' burden of proof, which may hinder the ascertainment of the facts.
（Reporter: Jiang Anjie）
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