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General introduction to the legislative framework for private antitrust enforcement

In China, the substantive law governing monopolistic activities and regulating monopolistic conduct is the AML, which took effect as of 1 August 2008.

At its core, a monopolistic civil dispute could be either a tort law issue or a contract law issue, and thus the PRC Tort Law (Tort Law) (effective as of July 2010) and the PRC Contract Law (Contract Law) (effective as of October 1999) are also applicable in a monopolistic civil dispute. In addition, the General Provisions of the Civil Law (effective as of October 2017) applies where the above-mentioned laws do not provide for particular scenarios.

The PRC Civil Procedure Law (Civil Procedure Law) and its corresponding judicial interpretations issued by the Supreme People's Court provide rules for a civil lawsuit proceeding. Considering the particularity of antitrust disputes and to facilitate the resolution of growing antitrust private actions, the Supreme People's Court issued the Provisions of the Supreme People's Court on Application of Laws in the Trial of Civil Disputes Arising from Monopolistic Practices (AML Judicial Interpretation) on 3 May 2012, which provide specific rules on procedures concerning antitrust civil actions.

In summary, the legislative framework for monopolistic civil disputes is as follows:

  1. regarding monopolistic violations:
    • the AML (issued by the Standing Committee of the National People's Congress on 30 August 2007, effective as of 1 August 2008);
  2. regarding legal liabilities:
    • the General Provisions of the Civil Law (adopted at the fifth session of the Twelfth National People's Republic of China on 15 March 2017, effective as of 1 October 2017);
    • the Tort Law (adopted at the 12th session of the Standing Committee of the Eleventh National People's Congress on 26 December 2009, effective as of 1 July 2010); and
    • the Contract Law (adopted at the second session of the Ninth National People's Congress on 15 March 1999, effective as of 1 October 1999); and
  3. regarding legal procedure:
    • the Civil Procedure Law (amended at the 28th session of the Standing Committee of the Twelfth National People's Congress on 27 June 2017, effective as of 1 July 2017);
    • the Provisions of the Supreme People's Court on Application of Laws in the Trial of Civil Disputes Arising from Monopolistic Practices (adopted at the 1,539th session of the Judicial Committee of the Supreme People's Court on 30 January 2012, effective as of 1 June 2012);
    • Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law (adopted at the 1,636th session of the Judicial Committee of the Supreme People's Court on 18 December 2014, effective as of 4 February 2015); and
    • Several Provisions of the Supreme People's Court on Evidence in Civil Proceedings (adopted at the 1,201st meeting of the Judicial Committee of the Supreme People's Court on 6 December 2001, effective as of 1 April 2002).

According to Article 16 of the AML Judicial Interpretation, the limitation period for private antitrust claims is two years from the date when the plaintiff becomes aware or should have become aware of the monopolistic conduct that gives rise to the action. If the alleged monopolistic conduct is continual by nature and has continued for more than two years from when the plaintiff files the lawsuit, the defendant's statute of limitations defence will not bar the plaintiff's claims. In this situation, however, the compensation for damages should be calculated for the two years before the lawsuit filing date. The newly issued General Provisions of the Civil Law further extend the statute of limitations to three years.

Further, according to the AML Judicial Interpretation, where a plaintiff reports the alleged monopolistic conduct to the AML enforcement agency, the statute of limitations is interrupted from the date of such report. If the AML enforcement agency decides not to open a case, or decides to revoke a case or terminate an investigation, the statute of limitations shall be recalculated from the day when the plaintiff becomes aware or should have become aware of the decision not to open a case, to revoke a case or to terminate an investigation. If the AML enforcement agency determines after an investigation that the alleged monopolistic conduct exists, the statute of limitations shall be recalculated from the day when the plaintiff becomes aware or should have become aware that the decision of the AML enforcement agency affirming the existence of monopolistic conduct has come into force.

Under the authorisation of the Anti-Monopoly Commission of the State Council, the State Administration for Market Regulation (SAMR), which is the new antitrust regulator consolidating the former antitrust bureaus of the NDRC, the State Administration for Industry and Commerce and the Ministry of Commerce, is drafting four guidelines (see Section XV). Although these guidelines are being drafted to provide guidance on AML enforcement activities, they may also be referred to by the people's court during private antitrust litigation. In particular, guidelines on the leniency programme and the commitment programme also provide rules concerning the relationship between the programme and antitrust litigation.