1、JUFE Yu Ling1Part 2Antimonopoly Law:Chinese PerspectiveJUFE Yu Ling Lecture Procedures Leading:writing practices (10mins)Class Presentation (25mins)Summary (5mins)Questions&Assignment (5mins)JUFE Yu LingActivity:writing practicesJUFE Yu Ling4Cases(1)ReportChristmas tree price fixing scandal in Denma
2、rk(2007)(2)Brief to case Continental TV Inc.v.GTE Sylvania,Inc.(1977).Leegin Creative Leather Products,Inc.v.PSKS,Inc.,551 U.S.877(2007).JUFE Yu LingYou will be divided into 2 groups.One group is required to write a report about Christmas tree price fixing scandal in Denmark(2007).The other group is
3、 required to write a brief to case about Continental case and Leegin case.Everyone should turn on a writing paper before next class.Your content must focus on Issues of this case Which judicial doctrine should be applied?How to prove monopoly conducts?Expected OutcomeJUFE Yu LingClass PresentationJU
4、FE Yu Ling7Christmas tree price fixing scandal in Denmark(2007)ReportJUFE Yu LingFactIn 2007 there was a sharp decline in Danish tree production.Production fell from 12 million to 8 million,reducing export numbers drastically.The United Kingdom,a nation which normally imported about 1.5 million Chri
5、stmas trees from Denmark,imported 500,000 trees from Denmark.Initially,the shortfall and the resulting price increase.During that time growers planted far fewer trees after overproduction had driven many Christmas tree farmers out of business.8JUFE Yu LingIssuesOn December 17,2007 the Danish Christm
6、as Tree Growers Association(DCTGA)was charged with price fixing by the state prosecutor for serious economic crimes.DCTGA:was accused of sending price guidelines to its members suggesting a price increase of 10 to 25 percent.In 2007,prices eventually rose 25 percent.Charges were handed down after th
7、e Danish Competition Authority warned the DCTGA in 2001 and 2005 about the same practices.Both the association itself and the associations director at the time Kaj stergaard were charged in the case.9JUFE Yu LingJudgment of First Instancethe Eastern High Court.The court ruled that the DCGTA had publ
8、ished price statistics and a price calculation model,as well as other tools which were used to guide member pricing,including minimum prices.The DCTGA was seriously violate of the Danish Competition Act due to price fixing.the DCTGA 500,000 kroner,and the members of the executive committee were fine
9、d 15,000 kroner.10JUFE Yu LingJudgment of Second InstanceThe Danish Supreme Court reviewed the case.The Supreme Court fined the DCTGA 500,000 kroner,and the members of the executive committee 25,000 kroner.Both the association and its manager were convicted in the case.11JUFE Yu LingQuestions1.What
10、is price fixing?What is horizontal agreements?What is monopoly agreements?2.Why should we fight against price fixing?3.How should the state regulate price fixing?4.How should the company prevent price fixing in order to minimize its legal risks?12JUFE Yu LingLearning Objectives(1)Define Price Fixing
11、,Horizontal Agreements and Monopoly Agreements;(2)Explain the Hazardness of Cartels;(3)Expound the Rationale of Regulating Cartels.JUFE Yu Ling14Chapter 4Horizontal Monopoly Agreements JUFE Yu Ling1.Price fixing,Horizontal agreements and Monopoly AgreementsRead Art.13(1)The Definition of MAs Monopol
12、y Agreements in AML refers to agreements,decisions or other concerted behaviors that eliminate or restrict competition.JUFE Yu Ling(2)The Forms of MAsQuestions:If there is no contract(agreement),can there be a MA between competitors?MAsAgreementsbetween competitorsDecisionsBy Trade Asso.other concer
13、ted behaviorsbetween competitorsJUFE Yu Ling(3)CategoryHorizontal agreements:Among competitors In the same levels of the production or distribution chain.Vertical agreements:Among business operators up or down the supply chain from one another.At different levels of the production or distribution ch
14、ain.JUFE Yu LingHorizontal agreements(Hard-core Cartels)Horizontal agreements are agreements among Sellers(or Buyers)that restrain competition between competitors in the same market.SellerBuyerSellerSellerBuyerBuyerJUFE Yu LingMAHorizontal agreementsamong competitorsVertical agreementsupstream&downs
15、tream companiesJUFE Yu Ling20(4)Price FixingAn agreement between competing firms in the market to set an established price for the goods or services they offer.What is the main purpose of Danish tree growers and DCTGA to conduct price fixing?To push the price as high as possible,orTo increase the pr
16、ofits of all sellers.JUFE Yu Ling(5)Other Kinds of HAs 1.Fixing or changing the price of commodities;2.Restricting the production quantity;3.Dividing the market;4.Restricting the purchase of new technology or new;5.Jointly boycotting transactions;or6.Other monopoly agreements as determined by the An
17、ti-monopoly Law Enforcement Agency under the State Council.21JUFE Yu Ling22Cartels are cancers on the open market economy.By destroying competition they cause serious harm to our economies and consumers.OECDJUFE Yu Ling2.The Hazardness of HAs23Combine Christmas tree case,please list the hazardness o
18、f price fixing.What is the hazardness to market economy？What is the hazardness to the consumers?What is the hazardness to other business operators?theft cf.price fixingJUFE Yu Ling2.The Hazardness of HAs1)Injury the interests of other business operators.2)Injury the interests of consumers.(prevents
19、resellers from competing too fiercely on price,especially with regard to fungible goods)3)Destroy the competition mechanism.24JUFE Yu LingTheft cf.price fixingTheft Property crime.No Social welfare net losses.25ApursesB(thieves)JUFE Yu LingTheft cf.price fixingPrice fixing Property crime.There alway
20、s are lot of Social welfare net losses.well-dressed thieves26Aprice fixingB(thieves);The operating cost of cartelsJUFE Yu Ling27lCompetition authorities have different ways and means to collect the necessary evidence.lThere is often need for competition authorities in different parts of the world to
21、 co-operate in these matters.JUFE Yu Ling3.The Rationale of Regulating Cartels28(1)The Judicial doctrine of cartel cases Read Art.13(2)What is burden of proof to Ps and Ds in antimonopoly cases?JUFE Yu LingJudicial doctrineper se violationBut as to trade associations and joint ventures,the Rule of r
22、eason is applied to determine if a violation of the Act has occurred.A JV is an undertaking by two or more individuals or firms for a specific purpose.29JUFE Yu Lingburden of proof(per se violation)30burden of proofTo prove there is an agreements(decisions or other concerted behaviors)between compet
23、itorsTo prove it may eliminate or restrict competitionTo prove it may be ImmunitedPsDs(if cant deny)JUFE Yu Ling(3)How to penalize?How did the court penalized the DCTGA and the members of the executive committee in Christmas tree case?In 2013,Samsung,LG and four Taiwanese firms have been fined heavi
24、ly for price-fixing of liquid crystal display(LCD)panels on the Chinese mainland.to pay 144 million yuan in fines and to return 172 million yuan of extra payment to Chinese mainland buyers.31JUFE Yu LingSummaryMarket economy and free trade foster growth and prosperity.The question of“why”Harmful car
25、tels between companies do exist in all parts of the world and must be counteracted.The question of“how”32JUFE Yu LingSummaryThe question of“how”Serious anti-competitive practices are,almost by definition,kept behind locked doors.Identifying,detecting and proving cartels is a difficult task that requ
26、ires a combination of law and economic competencies.No doubt,cartel activities do not stop at national borders.33JUFE Yu LingActivity 1:Building Compliance Culture JUFE Yu LingYou are required to write you legal memo about how to prevent its legal risks,as you are an in-house legal Counsel of a spec
27、ific company.You should pay attention to how to share information with competitors?how to contact with competitors?how to attend trade association conferences?how to make industry standards with competitors?Expected OutcomeJUFE Yu LingThis assignment is a part of your final assessment of this course
28、,which is“Antimonopoly Compliance Program of XX Company”.It will be evaluated on effort(including the depth of information and personal insight)and competency in legal writing.Your scores on this assignment will be recorded on your regular grade,and finally on your Total Mark of this subject.Assessm
29、entAssessmentJUFE Yu LingActivity 2:case studyJUFE Yu Ling38Introduction On 22 Feb,2013,NDRC released the decision to impose penalties on Moutai and Wuliangye,the two most famous Chinese producer of premium liquor,for administering resale price maintenance(“RPM”)of RMB 247 million and RMB 202 millio
30、n respectively.The official statement pointed out that the two companies fixed the minimum resale price to third-party distributors and punished those selling the products at a lower price.The conduct constituted a vertical monopoly agreement in violation of Article 14 of the AML,eliminated and rest
31、ricted competition in the market and harmed consumer interests.JUFE Yu LingTo collect NDRCs Administrative Punishment Decisions to Moutai and Wuliangye for RPM.Compare these two Administrative Punishment Decisions.You will be divided into 5 groups.Each group is required to write an essay and make a presentation almost fifteen minutes.Your presentation must focus on Brief to case（issues）Which judicial doctrine should be applied?What are the differences to the plaintiff?Expected Outcome
