Do China’s Antitrust Penalties Adequately Deter?

Shao Yang[1]

I. Introduction

In recent years, antitrust has become more and more important for China, which is consistent with the global trend. In 2018, China launched the reform of its antitrust authorities. Under that reform, the antitrust law enforcement functions formerly split among the National Development and Reform Commission (NDRC), the Ministry of Commerce, and the State Administration for Industry and Commerce were merged into the newly established State Administration for Market Regulation (SAMR), which made good preparation for enhancing antitrust law enforcement. Moreover, the fact that the 2020 Central Economic Work Conference listed antitrust and preventing disorderly capital expansion as one of the eight economic key tasks in 2021[2] shows that the Central Committee Read the rest

Pursuing Corrupt Fugitives: On China’s Trial-in-Absentia System

Yang Xiuzhu

 Ms. Yang Xiuzhu in the dock

Chen Liang (陈靓)[1]

Table of Contents

Abstract

I. Introduction

II. Background of the TIA System

A. National Policies against General Corruption

1. Starting Point in Late 2012

2. Evolving Campaign by 2018

3. New System since 2018

B. Political Incentives on Chasing Corrupt Fugitives

1. Starting from 2014

2. Law Enforcement Projects

3. Calls for a TIA System

C. Conclusion

III. How the TIA System Works

A. Investigation Phase

1. Jurisdiction of the TIA System

2. When to Transfer a Case for Prosecution

3. Conclusion

B. Prosecution Phase

1. Statutory Requirements

2. Discretion

3. Conclusion

C. Adjudication Phase

1. When to Accept a Case with the TIA Procedure

2. What to Do after Read the rest

CHINESE SOES & CORPORATE COMPLIANCE

WANG Zhipei (王之霈) [1]

I. INTRODUCTION

II. CHINA’S CORPORATE COMPLIANCE LAW

A. Laws Regarding SOEs’ Corporate Compliance

B. Relevant Regulations for Party Supervision of SOEs

C. Summary

III. WEAKNESS IN CHINA’S SOEs’ CORPORATE COMPLIANCE

A. Unique Challenges for SOEs Anti-corruption Efforts

1. Case Analysis

2. Deficiencies Reflected in SOEs’ Compliance Program

B. Cases Investigated by CCDI

IV. HOW CHINESE SOEs CAN IMPROVE THEIR CORPORATE GOVERNANCE

A. Analyze Business Risk According to Industry Characteristics and Implement Business Process Standardization

B. Clear Delineation of Functions and Establish a Sound Accountability Mechanism for Every Individual

C. Establish a Compliance Incentive Mechanism Through Legislation

V. CONCLUSION

I. INTRODUCTION

Since the 18th National Congress of the Communist Party of China, the corporate behaviorRead the rest

Limitations of Patenting Traditional Chinese Medicine

Xuejiao Cao (Blake)

I. Introduction
The pandemic of COVID-19 has taken a tremendous toll on all of us, as the crisis has ravaged the world.  In China, Traditional Chinese Medicine (“TCM”) has played an important role in the treatment of COVID-19. On 19 August 2020, the General Office of National Health Commission together with the State Administration of Traditional Chinese Medicine announced the Diagnosis and Treatment Plan for New Coronavirus Pneumonia (Trial Version 8)(“Plan”) .  In the Plan, these authorities acknowledged TCM’s contribution to curing Covid-19 patients. Just as the World Intellectual Property Organization (“WIPO”) has stipulated, “growing commercial and scientific interest in traditional medicine system has led to calls for traditional Read the rest

Duty of Care of Chinese Asset Managers: Can Case Law Fill the Gap?

Yuan Ye (袁野)

Table of Contents

Part I Introduction. 2

1. China’s asset managers and its clients’ dilemma. 2

2. Why is duty of care relevant?. 4

Part II Duty of care law.6

1. US Law on duty of care. 6

2. Chinese law on duty of care. 8

Part III What the Cases Say. 9

1. Search Results: limited substantive application and lack of useful reasoning. 10

1(1) Cases without Application. 11

1(2) Cases with Application. 12

2. Chinese case law and a comparison with US law. 18

2(1) Synthesis of case law: few clarifications on rules 18

2(2) The existing gap compared with US law.. 22

Part IV Conclusion. 22

Part I Introduction

Comment from the editor: law Read the rest

Are Chinese Local Health Departments Authorized to Requisition Masks in Transit During COVID-19?

Zhang Hui (Angela)

I. Introduction

When the COVID-19 pandemic started to spread in China in January this year, medical supplies such as masks were in shortage in many Chinese cities. Cities took different actions to resolve the demand for masks, but the health department of Dali City, Yunnan Province adopted a controversial one. On February 2, 2020, the Dali Health Department seized 598 boxes of masks in transit through Dali. Under Chinese law, this is a form of administrative requisition. Qingdao and Shenyang had similar plans until the State Council stopped them.

This ongoing issue stirred a debate online among Chinese netizens and legal professionals. They were concerned that such requisition would threaten the property rights of Chinese individuals, commercial … Read the rest

Dialogue on Similarities and Differences between English and Chinese Academic Writing

 

傅攀峰

On April 22, Dr Fu Panfeng傅攀峰, assistant research fellow at the Institute of International Law of the Chinese Academy of Social Sciences, Professor Susan Finder, and students of the Transnational Law Review Seminar course [at the School of Transnational Law] had a discussion over Zoom about some of the main similarities and differences between English and Chinese academic writing.  All recognized that overgeneralizations were inevitable.

Dr. Fu has published articles in leading Chinese law journals and worked on important national research projects related to international arbitration and other issues in cross-border commercial law. He received his LLB degree from Southwest University of Political Science and Law, and his Ph.D. from Wuhan University. During his Ph.D. studies, he spent a Read the rest

What Does Recent Tencent Litigation Against a Patent Troll Signify?

Peng Sheng

Introduction

A “patent troll” is a term used to identify a person or company that attempts to enforce patent rights against accused infringers far beyond the patent’s actual value of the prior art. Generally, patent trolls do not manufacture the patented product or process. Rather, they seek to profit through litigation against rich companies with similar patents, and then wait for a favorable settlement from the side of the opponent. It is a legal phenomenon that occurs throughout the world.[1]

In China, intellectual property (“IP”) owners have been facing lawsuits from patent trolls for many years.[2] In the past, giant companies in China tended to settle with patent trolls rather than pursuing a win-or-lose outcome.[3]Read the rest

Key Take-Aways from SAMR’s Triple Guidance on Antitrust Enforcement

Lin Yifu*

SAMR's Logo @ Hong Kong Competition ExchangeSAMR’s Logo ©️ Hong Kong Competition Exchange

On June 26, 2019, the State Administration for Market Regulation (hereinafter “SAMR”) promulgated three interim provisions in implementing Anti-Trust Law, all of which would come into effect on September 1, 2019.[1] Respectively, these new regulations[2] would govern three categories of monopolistic behaviors: monopoly agreements, abuse of dominant market position, and abuse of administrative power to exclude or restrict competition.

SAMR’s triple guidance on antitrust enforcement came against the backdrop of the “three-in-one” anti-trust law enforcement agency reform in 2018.[3] Against such background, SAMR aims to unify the fragmented tripartite enforcement scheme as existed previously where three separate agencies shared overlapped authorities.[4] These new regulations, as the Read the rest

What Blocks the Enforcement of Chinese Foreign Anti-Bribery Law?

What Blocks the Enforcement of Chinese Foreign Anti-Bribery Law?

Alvis Xiong

Introduction

In 1977, U.S. Congress enacted the Foreign Corrupt Practices Act of 1977 (FCPA), the first law specifically targeting at extraterritorial briberies to foreign public officials. Likewise, in 2011, China enacted a foreign anti-bribery provision, Criminal Law Article 164(2), which forbids “giving foreign public officials or international organization’s officials assets and properties in order to make improper business benefits.” However, although China did not totally ignore the provision, it is not substantially enforced.

The Chinese government did not totally ignore this enactment. For example, the Chinese Supreme Procuratorate once demonstrated interest to set rules about foreign anti-bribery.[1] Some huge SOEs (State Owned Enterprises) also set compliance programs for … Read the rest