CHINA Law and Practice Contributed by: Yi Xue, Zhong Lun
Law of the People’s Republic of China (the “Judicial Interpretation of the Civil Procedure Law”) also pro - vides that matters recorded in instruments prepared by national authorities or other organisations with law - ful social management functions will be deemed true, unless there is sufficient contrary evidence to overturn them. Accordingly, an effective decision made by the NCA and the facts determined therein would have proba - tive value to serve as the basis for the plaintiff to file follow-on litigation. The probative value of the NCA’s effective decision has also been confirmed in judicial practice. In the model antitrust cases, the “Natural Gas Company Tying Arrangement” case and Miao Chong v SAIC-GM , the SPC affirmed the probative value of NCA decisions in follow-on claims. An NCA cannot intervene in damages actions on its own initiative but can only participate in the follow-on litigation at the request of the courts. As provided in the New Judicial Interpretation, the courts may ask the NCA that has made the penalty decision to explain the relevant circumstances if necessary. As for the decisions of foreign NCAs, they may only serve as reference for the court and have limited influ - ence. 2.4 Proof Burden of Proof As antitrust private lawsuits fall within the scope of civil lawsuits, the general rules in the Civil Procedure Law and the Provisions of the Supreme People’s Court on Evidence in Civil Proceedings (the “Civil Evidence Provisions”) apply to antitrust lawsuits. Therefore, the general principle is that the plaintiff bears the burden of proof for its claims, whereas the defendant needs to provide the evidence for its defence and counter - claims. When it comes to antitrust civil lawsuits, the New Judi - cial Interpretation provides more specific rules on the allocation of the burden of proof in several scenarios. Horizontal monopoly agreements In general, for horizontal monopoly agreements, the plaintiff will bear the burden of proving the existence
of the agreement involving one of the activities listed in Article 17 of the AML, whereas the defendant will bear the burden of proving that the agreement does not have the effect of excluding or restricting the com - petition. In cases where horizontal monopoly agreements are established through concerted practices by the defendants, the plaintiff can shift the evidential burden to the defendants by demonstrating: • a consistency of market conduct among the defendants; and • evidence of a meeting of minds or exchange of sensitive information between the defendants, or an explanation of changes in the market structure or competitive landscape. Once these elements are established, the defendants must then justify the consistency of their conduct. Vertical monopoly agreements Article 18 of the AML makes it clear that agreements involving the resale price maintenance (RPM) will not be prohibited if the undertakings can prove that the agreements do not have the effect of eliminating or restricting competition, indicating that the RPM is pre - sumed to be illegal. To be consistent with the AML, Article 21 of the New Judicial Interpretation provides that the defendant will bear the burden of proving that the disputed RPM agreement does not have the effect of excluding or restricting the competition. In cases involving non-price vertical monopoly agree - ments, as neither the AML nor the New Judicial Inter - pretation directly address the allocation of the burden of proof, the general principle that the plaintiff bears the burden of proof for its claims may still apply. Abuse of market dominance For cases concerning abuse of market dominance, the New Judicial Interpretation provides a general principle for the allocation of the burden of proof. In other words, the plaintiff will demonstrate that the defendant possesses market dominance in the rel - evant market and that it has abused the dominance by violating Article 22 of the AML, whereas the defendant
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