CHINA Law and Practice Contributed by: Yi Xue, Zhong Lun
and curbing of the monopolistic act, including rea - sonable market survey fees, economic analysis fees, lawyer’s fees, etc, in the scope of losses for compen - sation. Existing laws and regulations do not expressly clarify whether pre-judgment interest can be incorporated into the damages awarded in cases of monopolistic practice. In principle, the difficulty of assessing the amount of economic losses and the applicable com - pensation duration – particularly in cases concern - ing monopolistic acts that entail tortious disputes – seemingly engenders a lack of well-founded grounds for determining the pre-judgment interest in judicial practice. However, the SPC has previously indicated in certain tort cases that if the amount of damages and the timing for calculating the corresponding interest are both ascertainable, the interest should be consid - ered as a component of the plaintiff’s financial losses, thereby making it possible for the plaintiff to claim for the pre-judgment interest pertaining to the damages. Regarding post-judgment interest, in instances where the infringer fails to fulfil the compensation obligations within the designated timeframe as outlined in the court’s judgment, the infringer will pay an additional post-judgment interest accrued on the damages dur - ing the deferred performance period. Per Article 1168 of the Civil Code, it is established that when two or more undertakings engage in a tortious act collectively ‒ resulting in harm to third parties ‒ they are bound by joint and several liability. Therefore, if the alleged monopolistic behaviours have been commit - ted jointly by multiple undertakings, such as in cases where multiple undertakings entered into a horizontal monopoly agreement or jointly conducted abuse of market dominance, the plaintiff who suffered dam - ages may claim that the undertakings bear joint and several liability. 9.2 Contribution The concept of right of contribution exists in the civil proceeding context in China. Under Article 178 of 9. Liability and Contribution 9.1 Joint and Several Liability
the Civil Code, the apportionment of liability shares among parties that are jointly and severally liable will depend on the magnitude of their respective respon - sibilities. In instances where the actual amount of damages assumed by a jointly and severally liable party exceeds the portion that the party should have assumed according to its gravity of liability, the party will be entitled to claim indemnities from other parties that are jointly and severally liable.
10. Other Remedies 10.1 Injunctions
In the realm of Chinese civil proceedings, there is no conceptual equivalent of an injunction as applicable in common law jurisdictions. Permanent relief measures, including actions such as halting infringements and compensating for losses in Chinese civil monopoly cases, are generally established by the court through the court trial and final judgment. Concurrently, interim reliefs ‒ commonly referred to as preservation meas - ures in China ‒ can also be adopted during or preced - ing the civil proceedings. As stipulated in the Civil Procedure Law, preservation measures fall into two categories: preservation during litigation and pre-litigation preservation. Regarding the former, when a defendant’s actions or other factors might complicate the future enforcement of a judg - ment or cause harm to the plaintiff, the court can ‒ upon the plaintiff’s application or at its own discretion ‒ decree the preservation of the defendant’s assets or issue orders prohibiting certain acts. Furthermore, during the pre-litigation phase, parties retain the right to seek court-ordered preservation when urgent circumstances imperil their legitimate rights and interests, potentially leading to irrevocable harm if preservation measures are not implemented. For pre-litigation preservation applications, the provi - sion of a guarantee by the applicant is necessary. In contrast, for preservation during litigation, the court may decide to mandate the applicant to furnish a guarantee based on the actual circumstances of the case.
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