CHINA Law and Practice Contributed by: Yi Xue, Zhong Lun
Applicable Law The AML currently stands as the primary legislative framework governing monopolistic behaviours and provides the legal foundation for concerned parties to bring civil lawsuits related to monopolistic practices. As articulated in Article 2 of the AML, the legislation applies to monopolistic activities within the territory of China as well as to monopolistic behaviours outside the territory of China that have the effect of precluding or restricting competition within the domestic market. In China, a disclosure or discovery mechanism equiv - alent to those found in common law jurisdictions is not available in civil lawsuit proceedings. This means that litigants are not legally obliged to proactively pre - sent evidence to the court or the opposing parties, nor do they have the right to compel the opposing parties to disclose evidence during the course of the proceedings. Instead, the Civil Procedure Law and supporting regulations have instituted a comprehen - sive framework of evidence rules for civil litigation, which – in certain respects ‒ can have effects similar to those achievable through the disclosure or discovery mechanism. 6. Disclosure/Discovery 6.1 Disclosure/Discovery Procedure The foundational principle governing the burden of proof in Chinese civil proceedings is that litigants must provide evidence to support their claims or counter the arguments put forth by the opposing parties. Fail - ure to provide appropriate evidence can expose a liti - gant to the risk of adverse consequences and even losing the case. During the pre-trial stage, the court will organise specific rounds of evidence exchange between the litigants to clarify both parties’ viewpoints and summarise the central focus of the dispute. At the trial stage, the evidence should be presented in court and cross-examined by the litigants. Certain evidence rules within China’s civil proceed - ings may be perceived as a somewhat analogous yet confined disclosure or discovery mechanism to a certain extent. By way of example, in cases where documentary evidence is within the control of the opposing party, the burden-bearing party may submit
a formal application to the court, seeking an order to request the opposing party disclose the documentary evidence. The applicant must provide within this writ - ten application the precise description of the docu - mentary evidence intended for submission, the per - tinent facts intended to be proven, and the evidence substantiating the opposing party’s control over the documentary evidence, as well as the necessity of the submission of this documentary evidence. In situations where the application is accepted and approved by the court but the opposing party refuses to provide the documentary evidence as requested without justifiable reasons, the court has the authority to directly affirm the accuracy of the content within the documentary evidence, as contended by the appli - cant. Similarly, in cases where a party possesses evi - dence but unreasonably withholds it and the oppos - ing party asserts the evidence to be adverse to the possessor, the court retains the right to declare the establishment of the assertion. 6.2 Legal Professional Privilege At present, China has not introduced the legal profes - sional privilege system within the context of civil law - suit proceedings. Therefore, even though lawyers are obliged to maintain the confidentiality of state secrets, trade secrets, and other information that clients pre - fer not to divulge, the court retains the authority to request litigants to submit the pertinent evidence if it considers it necessary. 6.3 Leniency and Settlement Agreements There are currently no established laws or regulations to definitively address the question of whether lenien - cy or settlement materials submitted to NCAs can be legally shielded from disclosure during civil proceed - ings. Therefore, similar to other types of evidence, and in accordance with applicable civil litigation rules, the court theoretically can ask litigants to provide leniency materials or settlement materials if the materials are necessary to ascertain the facts of the case.
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