CHINA Law and Practice Contributed by: Yi Xue, Zhong Lun
7. Witness and Expert Opinions 7.1 Witness Procedure
8. Damages 8.1 Damages: Assessment, Passing On and Interest According to the New Judicial Interpretation, damag - es in civil lawsuits related to monopolistic behaviours are granted solely to the plaintiff as compensation for their incurred economic losses attributed to the alleged monopolistic conduct. Consequently, punitive or exemplary damages are generally not applicable in these disputes. The losses suffered by the plaintiff attributed to the alleged monopolistic conduct include direct losses, as well as reduced acquirable benefits if the act had not occurred. For determination of the losses, the fol - lowing factors may be taken into account: • commodity prices, operating costs, profits, market shares, etc, in the relevant markets before imple - mentation of the alleged monopolistic act or after implementation of the alleged monopolistic act (and during the implementation thereof); • commodity prices, operating costs, profits etc in comparable markets that are not affected by the monopolistic act; • commodity prices, operating costs, profits, market shares, etc, of comparable undertakings that are not affected by the monopolistic act; and • other factors that can reasonably prove that the plaintiff has suffered losses due to the alleged monopolistic act. Where the plaintiff has evidence to prove that the alleged monopolistic act has caused losses to the plaintiff, but it is difficult to determine the specific amount of losses pursuant to the provisions of the preceding paragraph, the court may ‒ based on the plaintiff’s assertion and the evidence of the case ‒ determine a reasonable compensation amount discre - tionarily by taking into account the nature and extent, duration of the alleged monopolistic act, as well as the benefits gained by the perpetrator as a result of the alleged monopolistic act. Based on the plaintiff’s claim and the specific circum - stances of the case, the court may include reasonable expenses incurred by the plaintiff for the investigation
Witness testimony constitutes one of the eight admis - sible forms of evidence in a civil lawsuit. Witnesses may be summoned to provide testimony during the court trial, either at the behest of the litigants’ appli - cation or at the court’s own initiative under its offi - cial authority. In this context, witnesses possessing knowledge of the case’s facts are legally bound to testify before the court. In principle, witnesses should appear in court trials, furnish testimony, and field enquiries from judges and litigants alike, unless there are exceptional statutory circumstances constituting reasons not to. If wit - nesses encounter challenges that hinder their physi - cal presence in court – such as illness, transportation issues, or other unforeseen events – they can, with the court’s consent, deliver their testimony through meth - ods such as written statements, audiovisual transmis - sion technology or audiovisual materials. 7.2 Expert Witness Role and Procedure The involvement of expert witnesses in cases related to monopoly disputes, particularly when these dis - putes involve the abuse of market dominance, is quite commonplace. Antitrust litigation is a highly special - ised field that requires intricate knowledge of com - plex commercial, financial and accounting matters. To establish crucial elements such as the identification of the relevant market, the recognition of dominant position, the occurrence of economic damages, and the competitive impact of monopolistic behaviour, conducting economic analysis based on extensive data review, modelling, and statistical reports is often imperative. Therefore, the contribution of expert wit - nesses holds greater significance in antitrust litigation and can potentially impact the outcome of the case. According to the New Judicial Interpretation, the par - ties may apply to the court for one or two persons with expertise in the area involved in the case or with expertise in economics, etc, to appear before the court and give explanations on a specialised issue in the case.
61 CHAMBERS.COM
Powered by FlippingBook