(Source: "People's Court Daily" 2024-06-27)
Member of the Expert Advisory Group of the w88 online casino and Anti-Unfair Competition Committee of the State Council
Director of Competition Law Center, w88 casino, Professor of Law w88 casino
Huang Yong
On the second anniversary of the completion of the first amendment to my country’s w88 online casino Law, the Supreme People’s Court formulated the “Interpretation on Several Issues Concerning the Application of Laws in the Trial of Monopoly Civil Dispute Cases” (hereinafter referred to as the Judicial Interpretation of w88 online casino Civil Litigation) and officially issued it, which provides a more solid normative foundation for further guiding the people’s courts at all levels in the fair and efficient trial of monopoly civil cases in the future.
1. Create a new situation in antitrust trial work with a rigorous and pragmatic judicial attitude
In January 2012, the Supreme People's Court issued the "Provisions on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Caused by Monopoly Behaviors" (hereinafter referred to as the "Provisions on Monopoly Civil Cases"), which has become an important basis for guiding courts at all levels to hear monopoly civil cases over the past 12 years. With the continuous deepening of w88 online casino judicial work, economic development, technological advancement and the continuous emergence of new business forms, all walks of life have increasingly called for the Supreme People's Court to revise the "Regulations on Monopoly Civil Cases".
In this context, the Supreme People's Court has always insisted on summarizing and precipitating judicial experience in practice. From 2013 to 2023, courts across the country concluded a total of 977 first-instance civil monopoly cases. From its establishment in January 2019 to the end of May this year, the Intellectual Property Court of the Supreme People's Court accepted a total of 178 monopoly civil cases and concluded 131 cases. At the same time, the Supreme People's Court has announced 3 w88 online casino guiding cases and four batches of 28 typical w88 online casino cases. Multiple cases have long been used as necessary learning materials for teaching and research in universities. For example, Guiding Case No. 78 "3Q War" has caused theoretical and practical circles to pay attention to the limitations of the "Small but meaningful and not short-lived price increase" (SSNIP) method and the application of the "Small but meaningful and not short-lived decline in quality" (SSNDQ) method in the test of hypothetical monopolies, and the issue of determining the dominance of Internet platform companies. In particular, it has been made clear that market share in the Internet field is only a relatively rough and potentially misleading indicator for judging market dominance, leading related discussions and research to enter a deeper stage.
The Supreme People’s Court’s rigor runs through the entire process of formulating judicial interpretations of antitrust civil litigation. The formulation of this judicial interpretation did not start after the w88 online casino Law was completed for the first time in 2022. Instead, the project was completed in 2021, and it took three years to "come out despite repeated calls." During this period, the Supreme People's Court repeatedly solicited opinions from various departments inside and outside the court and local courts, held multiple expert demonstration meetings, and publicly solicited opinions from the public. The formulation of the Judicial Interpretation of w88 online casino Civil Litigation has only been released after professional and refined arguments and revisions.
2. Implement the society’s expectations on the judicial determination rules for monopolistic behavior
First, it has achieved an in-depth evolution from “prescription” to “explanation”. Judicial interpretations are divided into explanations, regulations, rules, approvals and decisions. Among them, "provisions" are more framework and principled norms or opinions formed based on the "legislative spirit"; while "interpretations" are to explain how to specifically apply the law in trial work based on a certain law, a certain type of case, and a certain type of issue. The 2012 "Provisions on Monopoly Civil Cases" contained a total of 16 articles. The judicial interpretation on w88 online casino civil litigation formulated this time contains a total of 51 articles. On the basis of absorbing and merging all previous provisions, the scope of interpretation was extended from procedures to procedures and entities, and finally a comprehensive judicial interpretation was formed.
The second is to accurately find sufficient space reserved for w88 online casino justice by amending the law. Controversy has arisen over whether the courts have the authority to identify monopoly agreements that are not expressly stated in the w88 online casino Law. Some people believe that since the w88 online casino Law stipulates "other monopoly agreements identified by the w88 online casino Law Enforcement Agency of the State Council", it excludes the court's right to identify such agreements. In this regard, the Constitution and Law Committee of the Standing Committee of the National People's Congress, after studying with relevant parties, believes that when the People's Court hears monopoly cases, it is necessary to make a judgment on whether a monopoly behavior constitutes a monopoly in accordance with the law when making a judgment. This includes making a final judgment on monopoly behavior that is not expressly stated in the law. One of the highlights of the 2022 w88 online casino law revision is that Article 16 of the w88 online casino Law specifically stipulates the theory of damage to monopoly agreements in a separate article. The Judicial Interpretation of w88 online casino Civil Litigation appropriately provides specific provisions on "other concerted behaviors determined by the People's Court as stipulated in Article 16 of the w88 online casino Law" and expressly fills in the gaps that may arise in judicial practice.
The third is to provide judicial guarantee and support for promoting the development of new productive forces. New productivity involves two important aspects: new business formats and intellectual property rights.
About new business formats. Although the platform economy is already well known to the whole society, the development of technologies and industries such as cloud computing and artificial intelligence has made the digital economy move from the "digital platform stage" to the "digital intelligence era", and has brought a series of changes to the business model and future innovation of the platform economy. In this context, the judicial interpretation of antitrust civil litigation contains a large number of provisions related to the platform economy, which not only summarizes the past, responds to the present, and faces the future. For example, Article 30 stipulates that when the people's court determines the market share of a platform operator in the relevant market, it can use the "number of data assets" as the calculation basis, thereby introducing "data assets into the table" into the perspective of the antitrust law. Since the Ministry of Finance formulated and issued the "Interim Provisions on Accounting Treatment Related to Enterprise Data Resources" in 2023, the practice of entering data into tables has begun and will gradually deepen. The judicial interpretation of w88 online casino civil litigation accurately grasps the latest developments in the development of the digital industry and forms norms to deal with it.
About intellectual property rights. Our country has gone through a long-term stage of implementing the "two ends outside" development model, and is now moving from an innovative country to an innovative power. Intellectual property rights are not only private rights, but also our country’s national strategy, and they also have common international rules. As Tao Kaiyuan, Vice President of the Supreme People's Court, pointed out at the press conference, "the balance of intellectual property protection involved in antitrust and international parallel litigation and other sensitive issues". Therefore, antitrust in the field of intellectual property is particularly special to our country and requires more comprehensive consideration. On related issues, the judicial interpretation of w88 online casino civil litigation has dealt with it in a manner that reflects the modest nature of the w88 online casino law. As stipulated in Paragraph 2 of Article 33, if an operator claims that it cannot have a dominant market position solely based on its possession of intellectual property rights, the people's court shall support it. Such a clear provision more firmly frames the antitrust analysis of intellectual property rights within the scope of comprehensive analysis and reasonable analysis.
3. Challenges and prospects of future antitrust civil justice
The new antitrust laws and judicial interpretations, while responding to market demands, also bring new challenges and expectations to antitrust civil trials.
On the one hand, it has put forward higher requirements for the professionalism of w88 online casino justice. Article 29 of the Judicial Interpretation of w88 online casino Civil Procedures specifically introduces the concept of “economic knowledge” into the scope of w88 online casino judicial rules. While fully expressing the basic orientation of w88 online casino justice to focus on economic analysis, it also puts forward higher requirements for the w88 online casino community, including w88 online casino trial workers, lawyers, scholars, etc. Antitrust cases are often highly professional, complex, and uncertain due to factors such as the systemic nature of the economy, the dynamics of competition, the complexity of business, and the abstract nature of rules. In the antitrust field, binding international conventions, multilateral and bilateral treaties do not yet exist, and it is difficult to emerge. The reason is that antitrust laws in each jurisdiction aim to protect local competition, and the degree of development, industrial structure, development direction, etc. of each country and region vary widely, and the need for a competitive order is also different. However, the commonalities in market values, antitrust rule frameworks, and economic principles make antitrust laws exhibit international convergence characteristics. Therefore, delving into the international commonality and national characteristics of legal technology and professional knowledge behind the convergence has become the best embodiment of antitrust professionalism.
On the other hand, reducing the difficulty for plaintiffs to produce evidence poses a challenge to judicial resources. At the press conference on the new judicial interpretation, Zhu Li, deputy chief judge of the Intellectual Property Court of the Supreme People's Court, specifically responded to the problem of "difficulty in producing evidence and proof" in w88 online casino civil litigation, and introduced how multiple clauses and measures in the judicial interpretation of w88 online casino civil litigation have reduced the plaintiff's burden of proof. In practice, there are many causes of action behind antitrust cases, including operators and consumers' rights protection, operators' attacks on competitors, antitrust civil public interest litigation, etc. Reducing the plaintiff's burden of proof is a double-edged sword. It not only facilitates the relief of damage to market competition-related rights and interests, but also lowers the threshold and cost for operators to attack competitors. The number of cases continues to increase significantly and may become a trend in the future. Therefore, courts must make good use of this double-edged sword and make more efforts to hear monopoly cases fairly and efficiently in accordance with the law.
In addition, the new judicial interpretation reduces the plaintiff’s burden of proof, which is also worth studying in the context of civil public interest litigation. The design of the civil public interest litigation system is partly to deal with the problem of excessive litigation costs for plaintiffs. The reduction of the plaintiff's burden of proof has brought more room for thinking about the scope and positioning of antitrust civil public interest litigation.
Whenever there is uncertainty in the global economy, the implementation of antitrust laws is easily labeled as w88 protection measures. my country's promotion of institutional opening up should avoid falling into this trap and fulfill the special mission of my country's antitrust law in deepening reforms in related fields. As one of the three major antitrust jurisdictions in the world, along with the United States and Europe, which have a century-old antitrust history, my country has the ability to respond to the above challenges more calmly based on its continuously accumulated antitrust judicial experience and continuously improved judicial rules, and continues to establish an authoritative and credible international antitrust judicial image, providing a good legal guarantee for market competition in promoting the construction of a new development pattern.
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