Chinese Law Prof Blog

China passes Antimonopoly Law

On Aug. 30, the Standing Committee of the National People's Congress passed the Antimonopoly Law, to come into effect on Aug. 1, 2008.

Here are some links to texts of the law as passed. Occasionally mistakes happen and web sites post versions that aren't quite the final version, so use with care.

• Hexun.com site
• Law-lib.com site
• People.com site (probably reliable)
• State Council Information Office (surely that's got to be reliable)

Below is an email sent to the Chinalaw list by member Paul Jones with more information.

Earlier today in Beijing the 29th Session of the Standing Committee of the 10th National People’s Congress voted to adopt China’s new 反垄断法 (Fan Longduan Fa) or Anti-Monopoly Law to come into force on August 1, 2008.

China Daily (in English): http://www.chinadaily.com.cn/china/2007-08/30/content_6069209.htm

Xinhua Net (New China News Agency – English): http://news.xinhuanet.com/english/2007-08/30/content_6632075.htm

Shanghai Daily (English): http://www.shanghaidaily.com/sp/article/2007/200708/20070830/article_329316.htm

China Radio International (English): http://english.cri.cn/2946/2007/08/30/189@268088.htm

Copies of the draft presented to the Standing Committee last Friday, August 24, 2007 have become available together with hurried translations, but the version presented was amended in the clause by clause reading of the Bill on Sunday, August 26, 2007:

Xinhuanet (in Chinese): http://www.npc.gov.cn/zgrdw/common/zw.jsp?label=WXZLK&id=371097&pdmc=110106

Among the amendments made were provisions to strengthen the prohibition on anti-competitive behavior by industry associations. Fines for such behavior were set at 500,000 RMB and in serious cases the industry association can be disbanded.

Legal Daily (in Chinese): http://www.npc.gov.cn/zgrdw/common/zw.jsp?label=WXZLK&id=371090&pdmc=110106

Xinhuanet (in Chinese): http://www.npc.gov.cn/zgrdw/common/zw.jsp?label=WXZLK&id=371097&pdmc=110106

This is a reaction to the July 25, 2007 across the board price hikes for instant noodles, a Chinese staple, by members of the International Ramen Manufacturers Association. This in turn led to an investigation by the National Development and Reform Commission under China’s existing legislation regarding price-fixing, the 价格法 (Jiage Fa) or Price Law, and pending the outcome of the investigation prices have returned to pre-July 25th levels. The Wall Street Journal had an interesting article on the cause of the price increase and the reaction.

Beijing Review (in English): http://www.bjreview.com.cn/quotes/txt/2007-08/30/content_74250.htm

Wall Street Journal (subscription required): http://online.wsj.com/article/SB118832631704811224.html

Today’s Wall Street Journal carries an article anticipating the adoption of the law and identifying concerns regarding enforcement.

http://online.wsj.com/article/SB118841110654812379.html?mod=hps_asia_whats_news

The article states that the law does not specify which government agency will be the main antitrust enforcer. I am not sure of the author’s basis for that statement. Articles 9 & 10 of the draft presented last Friday read (in translation):

“Article 9

The Anti-monopoly Committee under the State Council performs the following functions:

(i)    Making competition policies;

(ii)   Organizing the investigation and assessment of the market competition status as a whole and publicizing an assessment report;

(iii)   Making and publishing the anti-monopoly guidelines;

(iv)   Coordinating the anti-monopoly administrative enforcement work; and

(v)  Other functions assigned by the State Council.

The structure and protocol of the Anti-monopoly Committee shall be developed by the State Council   

Article 10

The Anti-monopoly Enforcement Authority designated by the State Council (Anti-monopoly Enforcement Authority) is responsible for the enforcement of the anti-monopoly law.

The Anti-monopoly Enforcement Authority, if appropriate, may empower corresponding government agencies at the provincial, autonomous region, and municipal level to be responsible for anti-monopoly enforcement activities in accordance with this Law.”

I have seen no suggestion that these were significantly amended. The State Council is roughly equivalent to a cabinet in a parliamentary system and the heads of the various ministries and departments are members of the Council. Accordingly I read this provision as saying that no one Ministry, such as the Ministry of Commerce, will administer the law. Rather it will be a new authority and that the State Council will resolve issues between the ministries with respect to the actions of the new authority.

Readers should note that all translations require the translator(s) to make imperfect choices. Accordingly a translation is also an interpretation of a law. The Chinese version is the only authoritative version of the law and it should be read in the context of China’s political and cultural structure. It should also be remembered that China has a civil law legal system, primarily modeled on the German legal system.

Today’s Wall Street Journal article also makes the point that many areas of dispute with respect to the new law have been deferred rather than resolved. In my opinion this is correct, and is an approach often used in Chinese law-making. It is quite consistent with a civil law approach to legislation. The general principles that have been agreed upon are set out in the law and other still contentious issues are moved into State Council “Tiaoli” and Ministerial “Ban Fa” (types of regulations) at least until a consensus is reached.

Accordingly before August 1, 2008 we should expect the release regulations clarifying many of the outstanding concerns (hopefully). The discretion of the administrators that the Wall Street Journal talks about is likely to be further limited before the law comes into force.

International Bridges to Justice seeks experienced public defender to run criminal clinical education project in China

International Bridges to Justice is seeking an experienced public defender to run its Criminal Clinical Education Project in China from November 2007 to December 2008. The professional requirements are listed in the announcement as follows:

- Experience as a criminal defense practitioner;
- Experience designing, delivering and evaluating training programs;
- Strong management and organizational skills;
- Teaching experiences and/or experience with criminal defense clinics is a great advantage;
- Fluency in written and oral English;
- Knowledge of Mandarin Chinese is an advantage.

Financial terms include US$4000/month. For more information, see the full announcement here.

Latest draft of the Antimonopoly Law (Chinese-English)

Here's a copy of the latest (3rd) draft of the Antimonopoly Law, dated Aug. 24, 2007. The document includes an English translation, but I don't know who's responsible for it and haven't checked it for accuracy.

Yang Jianli and China's Passport Law

Here's a piece by Joshua Rosenzweig of the Dui Hua Foundation on the Chinese government's issuance of a passport to the dissident Yang Jianli.

An interesting aspect of Chinese law pointed out by the article is that Chinese citizens cannot enter China without a valid passport. If the government chooses to invalidate, or refuses to renew, a Chinese citizen's passport while he is abroad, he won't be allowed back in. This is odd in a number of ways. Traditionally, a passport is a request from one sovereign to another to let the former's citizen or subject pass without let or hindrance. It's something foreign governments insist on seeing before they will let you in. But it's got nothing to do with the relationship between the citizen and her own government. To turn it into something your own government insists on seeing before it lets you in seems odd to me. At most it is convenient evidence of citizenship, but not the same as citizenship itself. (I recognize of course that few governments will let in people without valid passports simply because they claim to be citizens. You may have to wait at the border until you can prove your citizenship some other way. But typically you can't be expelled.)

One could argue, of course, that there's no reason why China's use of passports has to follow everyone else's. Still, there is Article 13 of the Universal Declaration of Human Rights, which states that "[e]veryone has the right to leave any country, including his own, and to return to his country." In short, it rejects exile as a governmental measure. It must be said that the ICCPR is a bit more ambiguous: it states that "[n]o one shall be arbitrarily deprived of the right to enter his own country[,]" suggesting that exile is permissible if imposed pursuant to due process of law. I would think that the refusal by a government ministry to issue a passport, where not preceded by a fair hearing, would be considered arbitrary under most definitions, given the high stakes involved.

When I first read Joshua's article, I thought that he must have misunderstood Chinese law regarding the entry of citizens; that surely Chinese law doesn't make the entry of its own citizens back into China contingent upon holding a valid passport, or that if it does, there's a plausible argument that such a requirement is unconstitutional. But having looked at the relevant legal texts, I must confess my intuition was wrong on both counts.

Comments welcome, especially with regard to whether I'm right about other countries not generally requiring a valid passport for re-entry of their own citizens.

Traffic rules in Beijing

Since this is about traffic rules and customs, I think it counts as related to Chinese law. Here's an analysis of how to make a left turn in Beijing.