BioIPR-C.O.M.

关键词/Keywords： Anti-monopoly Bench, China Anti-Monopoly Law

The first Chinese Collective Bench for Anti-Monopoly Case is found on 22. December 2008. This special collective bench is established in the Shanghai Nr.2 Intermediate People’s Court under the Intellectual Property Division. 

 

Author: Zhuomin Wu  From:www.BioIPR.com

The Anti Monopoly Law (AML) of China has been adopted and entered into force on 1st. August 2008. Since then the work for establishing a professional bench which especially focuses on anti-monopoly cases has begun. Because of the close relationship between monopoly and intellectual property right, the trial of those cases will be conducted by the current intellectual property divisions of the People’s Court. But this is the first time to deal with anti-monopoly case for Chinese judges, the supreme court determined to set up a model in Shanghai in order to get necessary experiences. 

One of the most important functions of this bench is that it is responsible for both civil and administrative AM cases.  Civil AM cases include, for instance, abuse of IPR, abuse of the dominant market position, restriction on competitive practices and so on; administrative AM cases include all kinds of abuses of administrative authority for restricting, excluding competition.

The judges of anti-monopoly bench are from IPR and  Administrative Divisions of the Court. The president of the Shanghai Nr.2 Intermediate People’s Court, Mr. Lv Guoqiang, is appointed as the president judge of this Anti-Monopoly Bench. He has worked very long time in the IPR area and did some law research in foreign countries such as in the Max Planck Institute for Intellectual Property Law in Germany.

Besides the trial work, the bench will be involved in a research project about the implementation of the new AML and helps to introduce it to the public. But this is only a very beginning. Whether and how the AML could be implemented as planned, China needs more qualified judges, as well as more well-educated scholars and officers  to build a good bridge among industry, public and governmental bodies. 

It is very important and necessary to cultivate an appropriate environment for implementing AML. In this sense,  the process of implementing AML is very similar as implementing IP law, these two laws are both “imported from the west” and lack of adequate basis on social, legal and economical levels. China has taken more than 20 years to create and improve IP protection till now,  there are still a lots of problems regarding implementation.  However, on the other hand,  there is one big difference which should be concerned: the IP Law is mostly considered by the Chinese public as a tool for protecting foreign companies(at least till now). And the AML is mainly recognized as a powerful instrument for protecting national industry from the foreign concerns. So, the implementation might be not that difficult  in the near future.

          

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