CHINA Law and Practice Contributed by: Yi Xue, Zhong Lun
will prove that it has justifiable reasons for conducting the behaviours. Owing to the difficulty plaintiffs typically face in judicial practice in proving that the defendant holds a domi - nant market position, the New Judicial Interpretation stipulates that plaintiffs only need to bear the initial burden of proof to balance the evidential burden. According to Article 29 of the New Judicial Interpre - tation, unless there is sufficient evidence to the con - trary, the court may preliminarily determine that the defendant holds a dominant market position based on factors such as market structure and competitive landscape if the plaintiff provides evidence showing that the defendant meets any of the following condi - tions. • The defendant maintains a price significantly higher than the competitive market level for an extended period, or the quality of the defendant’s com - modities significantly declines over a long period without a substantial loss of users, and the relevant market clearly lacks competition, innovation, and new entrants. • The defendant maintains a significantly higher market share compared to other undertakings for an extended period and the relevant market clearly lacks competition, innovation, and new entrants. As for the anti-competitive effects of a violation of abuse of market dominance, it is commonly under - stood that the burden lies with the plaintiff to prove that the defendant’s behaviour has the effect of excluding or restricting market competition. Standard of Proof The standard of proof in antitrust private lawsuits – as in civil claims generally ‒ is the balance of probabili - ties, which is commonly understood as a high degree of probability in China. According to Article 108 of the Judicial Interpretation of the Civil Procedure Law, with regard to the evidence provided by the party with the burden of proof, where the court believes that the existence of a fact to be proved is highly probable upon examination and in light of the relevant facts, it will affirm the existence of that fact. With regard to the evidence provided by a party to contradict the facts claimed by the other party with the burden of proof,
where the court believes that the contrary fact to be proved is unclear upon examination and in light of the relevant facts, it will affirm that the fact does not exist. 2.5 Pass-On Defence Clear provisions on the use of the pass-on defence in an antitrust case are absent from the existing legal framework in China. The draft version of the New Judi - cial Interpretation had included provisions regarding the pass-on defence. Article 45 of the draft had stated that when a plaintiff sought compensation from the defendant and the defendant was able to substanti- ate that the plaintiff had transferred a portion or the entirety of its economic losses to third parties, the court could deduct the transferred losses when deter - mining the amount of compensation. However, Article 45 was removed entirely in the final enacted version. 3. Limitation Periods and the Duration of Litigation 3.1 Statute of Limitations According to the Civil Code and the New Judicial Inter - pretation, the statute of limitations for relevant parties to file claims for damages arising from monopolistic conduct in civil litigation is three years from the date on which the plaintiff became aware or should have reasonably become aware of the harm to its rights and interests, as well as the identity of the party respon - sible. Lawsuits pertaining to claims where the rights and interests in question have been compromised for a period exceeding 20 years will not be afforded pro - tection by the court, unless an extension is specifically granted by the court upon application by the relevant parties and under certain exceptional circumstances. Moreover, the limitation periods can be subject to suspension or interruption where the plaintiff reports the monopolistic conduct to an NCA. The limitation periods will be recalculated from the date on which the plaintiff knows or should have known that the NCA’s handling decision is legally effective. 3.2 Typical Length of Private Antitrust Litigation The typical timetable for an antitrust damages claim can range from a few months to several years,
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