The Provisions was issued by Supreme People's Court on June 4th, 2019 and came into force on June 5th, 2019. The Provisions covers ecological environmental damage lawsuit application, rules of evidence, legal liabilities, judicial confirmation of compensation agreement, enforcement etc.
Based on the particularity of the case of compensation for ecological environmental damage, the Provisions create the relevant trial procedures and rules of evidence, and clarify issues such as the jurisdictional court, the trial organization, the trial organization, the plaintiff's burden of proof, and the rules for evidence review and judgment.
The Provisions bring new idea to the liability system for damage to ecological environment. For the first time, the “remediation of the ecological environment” is taken as the responsibility for the compensation for ecological environmental damage. It is clear that when the ecological environment can be repaired, it should bear the responsibility for repair and compensate for the loss of the ecological environment service function. When the ecological environment cannot be repaired, it should compensate for the permanent damage caused by the ecological environment function. Loss, and clearly include the “repair cost after repair effect” into the scope of repair costs.
The Provisions has promoted the legal system for compensation for ecological environmental damages in China, and further improved the ecological environmental protection legal system covering environmental civil public interest litigation, ecological environmental damage compensation litigation and general environmental tort liability litigation.
The Provisions were promulgated by the State Administration of Market Regulation on July 1, 2019, and will take effect on September 1, 2019. The main contents are as follows:
For the substantive rules, the Provisions refine the identification of monopoly agreements and clarify the exemption system. For the determination of monopoly agreements, the Provisions refine the manifestations of typical monopoly agreements prohibited by Articles 13 and 14 of the Anti-Monopoly Law, and also clarify the factors considered by the State Administration of Market Regulation to identify other monopoly agreements.
At the level of procedural rules, the Provisions provide for the authorization and jurisdiction, filing, investigation, suspension of investigations, termination of investigations, restoration of investigations, punishment, leniency, publicity, etc. In terms of suspending investigations, in order to more strictly grasp the scale of application of suspension investigations, the Provisions limit the scope of application of the suspension investigation procedure, adding fixed prices, limiting the number of production and sales of goods, and dividing the market into core cartels. The behavior of the suspension procedure is not applicable.
We recommend that companies should adopt a cautious approach in achieving and implementing the relevant agreements to fully assess the likelihood that their claims will be accepted.
Regarding the substantive rules, the Provisions provide detailed regulations on the manifestations and justified reasons for the abuse of market dominance. First of all, it is clear that the recognition of the market dominance of the operators is the premise of regulating the abuse of market dominance, and the factors that need to be considered in determining the dominant position of the market are refined and clarified. Second, the Regulations refine the typical analysis of the abuse of market dominance (specifically, over-pricing, below-cost sales, refusal to trade, restricted trading objects, tying and additional unreasonable conditions, and differential treatment), and stipulates factors that should be considered when identifying other abuses of market dominance.
For the procedural rules, the Provisions involve regulations on authorization, jurisdiction, filing, investigation, suspension of investigation, termination of investigation, investigation, punishment, publicity, etc.
We recommend that when companies adopt business strategies such as adding discount clauses, they should carefully consider their possible impact on the market and whether have necessary justifications.
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