CHINA Law and Practice Contributed by: Qian Xiaoqiang, Yang Yikai and Chu Linxian, Haiwen & Partners
ficient to eliminate the effect of exclusion or restriction of competition. 6.2 Collective Action The types of collective actions against cartel infringement include public interest litigation and representative action. Public Interest Litigation Article 60 of the 2022 Amendment empowers the People’s Procuratorate to bring a civil public inter - est litigation with the People’s Court (see 1.2 Regu- latory/Enforcement Agencies and Penalties ). Representative Actions The representative actions mechanism within the civil procedure legal regime can theoreti - cally be applied against cartel infringement, if several individuals or companies suffered dam - ages caused by the same cartel infringement (eg, several buyers of a price fixed products). According to Articles 56 and 57 of the Civil Pro - cedure Law, in a representative action, the rep - resentative plaintiff can be elected by consensus or the People’s Court may assist in appointing a representative plaintiff. The judgment or rul - ing made by the People’s Court shall be bind - ing upon all the right holders being represented, and those unregistered right holders who file a lawsuit within the limitation of action. 6.3 Indirect Purchasers and “Passing On” Defences At present, there is no statutory basis on how the People’s Court would handle claims brought by indirect purchasers or “passing-on” defenc - es. There are limited precedents in this regard. Despite this, as mentioned in 6.1 Private Rights of Action , any natural person, legal person or unincorporated organisation, regardless of being direct or indirect purchasers, who suffer losses
attributed to a cartel infringement is entitled to file an antitrust civil lawsuit. Judicial practice has also affirmed the plaintiff standing for indirect purchasers. In the case Tian Junwei v Carrefour et al Monopolization Dispute (case No (2014) Jing Zhi Min Chu Zi No 146), the Judge found that the current antitrust leg - islation framework “does not exclude indirect purchasers’ right to bring an anti-monopoly civil litigation” . However, the Beijing IP Court did not expand further on any specific rules such as the standard for recognising an indirect purchaser or the process to be applied. The People’s Court may request and use evi - dence obtained in administrative proceedings, based on the following. Under Article 67 of the Civil Procedure Law and Article 94 of the Supreme People’s Court’s inter - pretation of the Application of the Civil Proce - dure Law, the People’s Court should investigate and collect evidence that parties cannot obtain on their own due to objective reasons, which includes evidence held by relevant state authori - ties that parties and their legal representatives do not have the right to access or retrieve. Addition - ally, Article 10 of the 2024 Judicial Interpretation allows the People’s Court to request the Com - petition Authorities to clarify relevant aspects of that decision when necessary. 6.4 Evidence Obtained From Governmental Investigations/ Proceedings Moreover, the SPC has indirectly affirmed this principle in a ruling on a vertical monopolistic agreement (case No 2020, Supreme Law Zhi Min Zhong, No 1137). While not related to cartel behaviour, this case offers relevant insights. In that instance, after the Competition Authorities
53
CHAMBERS.COM
Powered by FlippingBook