The revised Anti-Monopoly Law of the People’s Republic of China (“New AML”) entered into force on August 1, 2022. The New AML introduces in the second paragraph of Article 60 that “where the monopolistic conduct of an undertaking damages social and public interest, the people’s procuratorate at or above the level of city with subordinate districts may file a public interest civil lawsuit with the people’s courts”, thereby clarifying for the first time the application of civil public interest litigation in anti-monopoly cases at the legalization level.
On the very same day the New AML took effect, the Supreme People’s Procuratorate (“SPP”) issued the Notice on Actively and Soundly Carrying out Public Interest Litigation Prosecution Works in the Antitrust Field in accordance with the Anti-monopoly Law (“Notice”). The Notice underscores that the people’s procuratorate should actively and soundly carry out Public Interest Litigation Prosecution worksin the field of anti-monopoly with the focus on the Internet, public utilities, medicine, and other sectors of livelihood security. This article, with a view to facilitating companies to foresee the relevant risks, intends to introduce the system of civil public interest litigation brought by the people’s procuratorates (“Prosecutorial Civil Public Interest Litigation”) and the focal issues of its application in the anti-monopoly field.
Major Issues:
- The procedural law basis of Prosecutorial Civil Public Interest Litigation.
- How to determine the jurisdiction of the procuratorates and courts over the anti-monopoly case of Prosecutorial Civil Public Interest Litigation?
- What procedures shall be completed by the procuratorates in reviewing the anti-monopoly case of Prosecutorial Civil Public Interest Litigation?
- What investigative techniques can the people’s procuratorate take in Prosecutorial Civil Public Interest Litigation?
- The differences between hearings in Prosecutorial Civil Public Interest Litigation and those in the anti-monopoly administrative investigation.
- The claims that the people’s procuratorate can file in the anti-monopoly case of Prosecutorial Civil Public Interest Litigation.
- Whether the people’s procuratorate can request the anti-monopoly enforcement authority to initiate an investigation on monopoly behavior.
- The platform economy has come under the spotlight of Prosecutorial Civil Public Interest Litigation, hence more attention is required on company compliance works in this field.
I. The Procedural Law Basis of Prosecutorial Civil Public Interest Litigation
Pursuant to Article 20(4) of the Organic Law of the People’s Procuratorates of the People’s Republic of China (“Organic Law of the People’s Procuratorates”), the scope of authority enforced by the people’s procuratorates includes “filing public interest lawsuit in accordance with the law”. Article 58 of the Civil Procedure Law of the People’s Republic of China (“Civil Procedure Law”) stipulates in principle regarding the civil public interest litigation, providing that, “For conduct that pollutes the environment, infringes upon the legal interests of vast consumers, or otherwise damages the public interest, the authority or relevant organization as prescribed by law may institute an action in a people’s court. Where the people’s procuratorate finds in the performance of functions any conduct that undermines the protection of the ecological environment and resources, infringes upon consumers’ lawful rights and interests in the field of food and drug safety, or any other conduct that damages social interest, it may file a lawsuit with the people’s court if the authority or organization prescribed in the preceding paragraph does not file a lawsuit. If the authority or organization prescribed in the preceding paragraph files a lawsuit, the people’s procuratorate may support the filing of a lawsuit.” 1
The aforesaid legal provisions establish the procedural law basis for people’s procuratorates to initiate civil public interest litigation. On this basis, the Supreme People’s Court (“SPC”) and the SPP issued the Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues concerning the Application of Law for Cases regarding Prosecutorial Public Interest Litigation (2020 Amendment) (“Interpretation of Prosecutorial Public Interest Litigation”) in March 2018; the SPP issued the Rules for the Handling of Public Interest Litigation Cases by the People’s Procuratorates (“Rules for Handling Cases”) in June 2021, which drawn up detailed provisions on the issues concerning the filing, investigation, prosecution, and trial of Prosecutorial Civil Public Interest Litigation. Furthermore, the SPC has promulgated a series of judicial interpretations and regulations for the proceedings of specific civil public interest litigation cases, including the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Environmental Civil Public Interest Litigation (“Judicial Interpretation of Environmental Civil Public Interest Litigation”), the Interpretation of the Supreme People’s Court on Several Issues concerning the Application of Law in the Trial of Civil Public Interest Actions regarding Consumption (“Judicial Interpretation of Consumer Civil Public Interest Litigation”).
ii. Jurisdiction of Anti-monopoly Civil Public Interest Litigation Case
a. Jurisdiction of the People’s Procuratorates over Anti-monopoly Civil Public Interest Litigation
Pursuant to the first paragraph of Article 14 of the Rules for Handling Cases, “When people’s procuratorates handle civil public interest litigation cases, the primary people’s procuratorates in the place of occurrence of the illegal act, the place of resultant injury, or the place of residence of the violator of law have jurisdiction over the opening of cases.” Pursuant to Article 15 of the Rules for Handling Cases, “People’s procuratorates at or above the districted city level have jurisdiction over significant and complicated cases within their jurisdictions. A public interest litigation case in which the scope of public interest injury involves not less than two administrative divisions may be under the jurisdiction of their common higher people’s procuratorate.”
The SPP provided special provisions under the Notice on the jurisdiction of the people’s procuratorates over the anti-monopoly case of civil public interest litigation:
- The people’s procuratorates at or above the level of city with subordinate districts in the place of occurrence of the illegal act, the place of resultant injury, or the place of domicile of the offenders shall have jurisdiction over the anti-monopoly cases of civil public interest litigation.
- The people’s procuratorates at the provincial level or the SPP shall directly file cases of significance, sensitivity, and/or complexity such as cases involving the compliant operation of leading Internet companies, Internet industrial policies, industry standards, and international competition.
b. Jurisdiction of the People’s Courts over Anti-monopoly Civil Public Interest Litigation
Regarding the jurisdiction of the people’s court in the anti-monopoly case of Prosecutorial Civil Public Interest Litigation, while there remain no specific regulations or published cases, we understand that, based on the relevant provisions of Prosecutorial Civil Public Interest Litigation and antitrust civil litigation, theoretically, the following conclusions can be reached.
- As regards the anti-monopoly civil public interest litigation in the first instance filed by people’s procuratorates at the level of city with subordinate districts, the jurisdiction shall lie with the intellectual property courts or intermediate people’s courts.
- With respect to the anti-monopoly civil public interest litigation in the first instance instituted by provincial people’s procuratorates, the jurisdiction shall fall upon the high people’s courts.
- As for the anti-monopoly civil public interest litigation in the first instance brought by the SPP, the jurisdiction of the Intellectual Property Tribunal of the SPC shall prevail.
- All the anti-monopoly civil public interest litigation of second instance shall be under the jurisdiction of the Intellectual Property Tribunal of the SPC in theory.
The relevant provisions are as follows:
- Pursuant to the first paragraph of Article 5 of the Interpretation of Prosecutorial Public Interest Litigation, “for a first-instance civil public interest litigation case filed by a people’s procuratorate at the city (branch or prefecture) level, the intermediate people’s court at the place where the infringement occurs or in the domicile of the defendant shall have jurisdiction over the case.” Pursuant to Article 16 of the Rules for Handling Cases, “where the jurisdiction over opening cases by a people’s procuratorate does not correspond to the jurisdiction over litigation by the people’s court either in the level or geographical area, the people’s procuratorate with jurisdiction may open a case, and if a litigation case needed to be filed, the case shall be transferred to the people’s procuratorate with the same level corresponding to the jurisdiction of people’s court.”
- Pursuant to Article 3 of the Provisions of the Supreme People’s Court on Several Issues concerning the Application of Law in the Trial of Civil Dispute Cases Arising from Monopoly Conduct (“Judicial Interpretation of Monopoly Civil Disputes”) and Article 1 of the Several Provisions of the Supreme People’s Court on the Jurisdiction of Civil and Administrative Cases of Intellectual Property of the First Instance, first-instance monopoly-related civil dispute cases shall be under the jurisdiction of intellectual property right courts, intermediate people’s courts of the cities where the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government are located and cities under separate state planning as well as intermediate people’s courts designated by the Supreme People’s Court.
- Pursuant to Articles 19 and 20 of Civil Procedure Law, exceptions exist in the hierarchical jurisdiction of anti-monopoly civil litigation in the first instance: 1) cases with significant impact within the jurisdiction shall be under the jurisdiction of the high people’s courts; 2) monopoly civil cases with national significance or cases that the SPC considers should be heard by it, shall be heard by the SPC.
- Pursuant to Article 2(1) of Provisions of the Supreme People’s Court on Several Issues Concerning the Intellectual Property Tribunal, appeals filed against the judgments and rulings of first-instance civil cases of monopoly conducts rendered either by high people’s courts, intellectual property courts or intermediate people’s courts shall be herd by the Intellectual Property Tribunal of the SPC.
III. Procedures for the People’s Procuratorate to Review Civil Public Interest Litigation Cases
According to the relevant provisions of Interpretation of Prosecutorial Public Interest Litigation and Rules for Handling Cases, the main procedures for the people’s procuratorate to handle civil public interest litigation cases include:
- Registration and filing of case clues. The people’s procuratorate adopts a unified registration and filing management system for public interest litigation clues, among which major case clues shall be filed with the people’s procuratorates at a higher level. Based on Article 24 of Rules for Handling Cases, “the sources of clues to public interest litigation cases include: (1) accusations and reports filed by natural persons, legal persons, and unincorporated organizations with people’s procuratorates; (2) discoveries made by people’s procuratorates in handling cases; (3) discoveries made on administrative enforcement information sharing platforms; (4) transfers from state authorities, social groups, deputies to the People’s Congress, and members of the People’s Political Consultative Conference; (5) report from the news media, public opinion and others; and (6) other discoveries in the performance of duties.”
- Evaluation and preliminary investigation of case clues. Upon obtaining the case clues, the people’s procuratorates shall evaluate the authenticity and verifiability of the public interest litigation case clues, and if necessary, proceed with the preliminary investigation to form a Preliminary Investigation Report.
- Stage of filing cases. Where a people’s procuratorate deems after an assessment that the national interest or public interest is injured and that there might be an illegal act, it shall file a case for investigation. Where procurators propose to file or not file a case after evaluating the clues to a case, they shall fill out a Case Opening Approval Form, append thereto a Preliminary Investigation Report after preliminary investigation, and make a Decision to File a Case or Decision Not to File a Case after report to the chief procurator for decision.
- Stage of investigation. A people’s procuratorate shall, prior to an investigation, formulate an investigation plan to determine the outline, methods, and steps of the investigation and a list of evidence to be collected, among others. The evidence for a people’s procuratorate to handle public interest litigation cases includes documentary evidence, physical evidence, audio-visual recordings, electronic data, witness testimony, statements by the parties concerned, forensic expert opinions, other expert opinions, and transcripts of inspection.
- Pre-litigation announcement. Where the people’s procuratorate intends to file a public interest lawsuit after investigation, it shall make an announcement according to law for a period of 30 days. After 30 days, the people’s procuratorate may file a lawsuit with the people’s court in the absence of an eligible subject to file a lawsuit. For instance, in the first civil public interest litigation case for the protection of juveniles on the Internet in 2021, the People’s Procuratorate of Yuhang District of Hangzhou City, Zhejiang Province, performed the pre-litigation announcement procedure before bringing a lawsuit against a viral domestic short video company.
- Filing a litigation case. To file a civil public interest litigation case, a people’s procuratorate shall submit the following materials: (1) the written complaint of the civil public interest litigation, with duplicates thereof provided based on the number of defendants; (2) the preliminary evidentiary materials proving that the act of the defendant has damaged the public interest; (3) the evidentiary materials proving that the public announcement procedure and other pre-litigation procedures (if applicable) have been performed.
IV. Investigative Techniques the People’s Procuratorate Can Take in Civil Public Interest Litigation Cases
Pursuant to Article 35 of Rules for Handling Cases, “when handling public interest litigation cases, a people’s procuratorate may conduct investigations and collect evidence in the following manners: (1) consulting, retrieving, and copying case materials related to law enforcement and litigation files, among others; (2) questioning the staff of administrative organs, offenders, administrative counterparts, interested persons, witnesses, among others; (3) collecting documentary evidence, physical evidence, audio-visual recordings, electronic data, and other evidence from relevant entities and individuals; (4) seeking the advice of professionals, relevant departments, or industry associations; (5) commissioning appraisal, assessment, audit, inspection, testing, and translation; (6) inspecting physical evidence and scenes; (7) other necessary manners of investigation. A people’s procuratorate shall not adopt such compulsory measures as restricting personal freedom and placing under seal, seizing, or freezing property when conducting investigations and collecting evidence.”
For example, in July 2020, the People’s Procuratorate of Yuhang District of Hangzhou City, Zhejiang Province, when handling the child molestation case against Xu XX, found clues to a civil public interest litigation case on the infringement of children’s personal information by a company in Beijing and carried out a preliminary investigation with Internet technology. The procuratorate built on the comprehensive evidentiary materials, including the amount of personal information collected and processed by the application and testimony from the application users, to prove the fact that the application had collected and processed children’s personal information. The supporting evidentiary materials cited by the procuratorate include: screenshots of the user‘s service agreement, privacy protection policy, application interface, and testimony to prove that the child users of this application can register to use it without the consent of their guardians; evidence obtained through the adoption of “blockchain” forensics equipment to verify that the application collects and handles children’s personal information by means of implied consent of guardians, one-time authorization of general consent and other methods. In addition, the prosecution collected and fixed the evidence of infringement upon the personal information rights of hundreds of children to establish the harmful consequences. The prosecution also had the confession made by Xu and others to demonstrate the causal relationship between the infringement and the damage consequences.
V. Hearings in Prosecutorial Civil Public Interest Litigation
Pursuant to Article 44 of Rules for Handling Cases, “a people’s procuratorate may organize a hearing in accordance with rules, attend to the opinions of the hearing officers, administrative authorities, violators of law, persons subject to administrative action, victim representatives, and other relevant parties, and learn the relevant issues. The written material formed at the hearing is an important reference for the people’s procuratorate to handle the public interest litigation case in accordance with the law.”
For example, in a series of criminal cases with incidental civil public interest litigation filed by the People’s Procuratorate of Pingjiang County, Hunan Province against Zhang XX et al. on illegal fishing of aquatic products and destruction of ecological resources, the procuratorate, for a better effect of punishment as well as education, so as to guide the public to consciously protect the ecological environment, decided to hold a pre-litigation public hearing on September 24, 2020, in Meixian Town, where the similar cases frequently occurred. The hearing was attended by the deputies to the People’s Congress, members of the CPPCC, People’s Supervisors, and representatives of local people, who served as the hearers. The discussion centered on the critical issues of whether the illegal fishing behavior in this series of cases undermines public welfare, the damaging effect of the behavior concerned on aquatic ecological resources, the ecological restoration approach, and the punishment.
What should be noted in this respect is that, unlike anti-monopoly administrative investigation practice, in which the antitrust enforcement authority “should” inform the party involved of its right to request a hearing, the people’s procuratorates are not obliged to hold a hearing during the review of a case, but “may” hold a hearing based on the investigation of a specific case.
- Pursuant to the first paragraph of Article 63 of Law of the People’s Republic of China on Administrative Penalty, “before making the following decisions on administrative penalties, an administrative authority shall notify the party of the right to request a hearing, and where a party requests a hearing, the administrative authority shall organize a hearing: (1) a large amount of fines; (2) confiscation of a large amount of illegal income or a large value of illegal property; (3) downgrade of qualification, or revocation of license; (4) suspension of production, closure of business, or restriction of operation; (5) other severe administrative penalties; (6) other circumstances as prescribed in laws, regulations, and rules.” Since antitrust administrative penalties typically result in significant fines, confiscation and other penalties, the rule that “shall notify the party of the right to request a hearing” is usually triggered in practice.
- Pursuant to the first paragraph of Article 4 of Provisions of the People’s Procuratorates on the Hearing Work for Case Examination, “when the people’s procuratorate handles the examination of the necessity of custody, decision not to prosecute, criminal petition case, civil litigation supervision case, administrative litigation supervision case, or a public interest litigation case, if there is a significant social impact or a major dispute in the determination of facts, the application of the law, the handling of the case, and therefore needs to listen to the opinions of the parties and other relevant personnel in person, a hearing may be held upon the approval of the Procurator-General.” Based on the Rules for Handling Cases and the foregoing provisions, the People’s Procuratorate has the authority which is not an obligation to decide whether to hold a hearing in Prosecutorial Civil Public Interest Litigation.
VI. Claims that the People’s Procuratorate Can File in Civil Public Interest Litigation
Different from a private civil lawsuit, the premise of the people’s procuratorate to file a public interest civil lawsuit is that the behavior of the defendant damages the “public interest”. As to the claims that the People’s Procuratorate can file in civil public interest litigation, especially whether compensation for damages can be claimed, that depends on the type of case and the specific circumstances.
- Pursuant to Article 18 of the Judicial Interpretation of Environmental Civil Public Interest Litigation, “for any conduct that pollutes the environment and damages the ecology, which has damaged the public interest or has the major risk of damaging the public interest, the plaintiff may request the defendant to assume the civil liabilities including but not limited to the cessation of the tortious act, removal of the obstruction, elimination of the danger, restoration to the original state, compensation for damages, and apology.” Pursuant to Article 21 of the Judicial Interpretation of Environmental Civil Public Interest Litigation, the “compensation for damages” refers to “the damages resulting from the loss of service functions from the time when damage is caused to the ecology and environment to the completion of remediation and the losses resulting from permanent damage to ecological and environmental functions”.
- Pursuant to the first paragraph of Article 13 of the Judicial Interpretation of Consumer Civil Public Interest Litigation, “in a consumer civil public interest litigation, the plaintiff requests that the defendant should assume such civil liabilities as ceasing the infringement, removing obstacles, eliminating dangers, and offering apologies, the people’s court may support such request.”While the law explicitly provides that consumers are entitled to “compensation for damages”, the aforesaid judicial interpretation does not specifically incorporate “compensation for damages” in the scope of claims in consumer civil public interest litigation cases. The people’s procuratorates have claimed punitive damages in certain civil public interest litigation cases filed with respect to the protection of rights and interests of consumers, which were upheld by the people’s courts.
- Pursuant to the first paragraph of Article 60 of the New AML, “the business operators that carry out the monopoly conduct and cause damages to others shall bear the civil liability according to law.” Pursuant to Article 14 of the Judicial Interpretation of Monopoly Civil Disputes, “where a defendant’s monopoly conduct has caused any losses to the plaintiff, the people’s court may, in light of the plaintiff’s claims and the finding of facts, order the defendant to cease infringement, compensate for losses, and otherwise assume civil liability in accordance with law. According to the plaintiff’s claim, the people’s court may include the plaintiff’s reasonable expenses on investigation and prevention of the monopoly conduct in the scope of compensation for losses.”
The questions of what claims the people’s procuratorate can bring up in the anti-monopoly case of Prosecutorial Civil Public Interest Litigation, whether losses compensation may be covered and how to calculate losses, etc., remain to be subsequently confirmed in subsequent detailed regulations, judicial interpretations, and practice.
VII. The People’s Procuratorate may Issue Prosecutorial Recommendations to the Anti-monopoly Enforcement Authority
Pursuant to Article 21 of the Interpretation of Prosecutorial Public Interest Litigation, “where the people’s procuratorate finds in the performance of functions that any administrative authority assuming supervision and administration functions in such fields as the protection of the ecological environment and resources, food and drug safety, protection of state-owned property, and the assignment of the right to use state-owned land exercises functions in violation of any law or conducts nonfeasance, which infringes upon national interest or public interest, it shall issue prosecutorial recommendations to the administrative authority, and urge it to perform functions in accordance with the law. The administrative authority shall, within two months upon receipt of a written prosecutorial proposal, perform its duties and make a written response to the people’s procuratorate. If there is a such emergency where the damages of the state interests or public interests continue to expand, the administrative authority shall make a written response within 15 days. Where the administrative authority fails to perform its duties according to the law, the people’s procuratorate shall file a lawsuit with a people’s court.”
Based on the foregoing provision, theoretically, if the people’s procuratorate obtains clues concerning monopoly conduct and, upon assessment, found it “infringes upon national interest or public interest”, it may, in addition to considering filing a civil public interest lawsuit, simultaneously issue prosecutorial recommendations to the anti-monopoly enforcement authority (i.e., the State Administration for Market Regulation and the corresponding provincial market supervision administration). The anti-monopoly enforcement authority, upon receipt of the prosecutorial recommendation, shall verify and respond in writing to the people’s procuratorate within the period stipulated in law.
The people’s procuratorate has previously issued prosecutorial recommendations to the market supervision authorities in many places on issues such as the protection of personal information and consumer rights. For example, in the case conducted by the People’s Procuratorate of Lucheng District of Wenzhou City, Zhejiang Province to urge the protection of patients’ personal information, Zhang XX et al., suspected of criminal offenses, were held criminally liable in accordance with the law, however, the companies involved were not punished accordingly for Zhang XX and Lu XX’s marketing of their business by taking advantage of their illegally obtained personal information of maternity and others. On August 29, 2019, the People’s Procuratorate of Lucheng District of Wenzhou City, Zhejiang Province, issued a pre-litigation prosecutorial recommendation to the Administration for Market Regulation of Lucheng District of Wenzhou City, Zhejiang Province (“ Lucheng District AMR”), urging it to investigate and deal with the illegal acts conducted by the relevant company, and to take effective methods to intensify the crackdown on illicit operations infringing upon consumers’ personal information within their respective authority. In July 2020, after the receipt of the prosecutorial recommendation, Lucheng District AMR imposed an administrative penalty on the concerned photographic company, ordering rectification of the parties concerned, confiscating illegal proceeds of RMB 4,000, and imposing a fine of RMB 34,000; the training company involved was ordered to make rectification and fined RMB 30,000. Meanwhile, Lucheng District AMR carried out district-wide specific actions and associated publicity campaigns against the misappropriation of consumer personal information.
The New AML only explicitly stipulates that the people’s procuratorates can initiate civil public interest litigation cases against monopoly conducts that undermine the public interest of society but the issue of prosecutorial recommendations to administrative authorities and administrative public interest litigation are within the statutory power as specified in the Organic Law of the People’s Procuratorates and relevant provisions. Consequently, for monopoly behaviors found by the people’s procuratorate in the exercise of its power to be detrimental to the public interest of society, in addition to filing civil public interest litigation, it may as well propose to the SAMR or the corresponding provincial market supervision authority to launch an anti-monopoly investigation. Undertakings who conduct monopoly behavior may take the risk of being the target of civil public interest litigation and administrative investigations and penalties simultaneously.
VIII. The Platform Economy has Come under the Spotlight of Prosecutorial Civil Public Interest Litigation
On August 1, 2022, while the AML took effect, the SPP issued the Notice, which underscores that the people’s procuratorate should actively and soundly carry out Public Interest Litigation Prosecution worksin the field of anti-monopoly with the focus on the Internet, public utilities, medicine, and other sectors of livelihood security. Prior to the publication of the Notice, the SPP had repeatedly clarified its intention to strengthen the jurisdiction on prosecutorial public interest litigation in the platform economy.
- On March 8, 2022, Jun ZHANG, the Chief Procurator of the SPP, proposed in the Work Report of the SPP in 2022 people’s procuratorate would “reinforce anti-monopoly, anti-profiteering and anti-unfair competition justice, with the view of supporting and directing the standardized and healthy growth of capital.”
- On March 3, 2021, at a press conference of the SPP, Weilie HU, the Chief Procurator of the Eighth Prosecutorial Department of the SPP, mentioned the promotion of Internet platform anti-monopoly and anti-unfair competition public interest litigation to strengthen the regulation on the platforms’ behavior of “either-or choice”, false propaganda, credit speculation by scalping, bidding for ranking, illegal sales promotion, illicit data collection, illegal push notification and other acts that may disrupt the order of market competition.
- On January 25, 2021, Xinjian ZHENG, member of the Procuratorate Committee of the SPP and the Chief Procurator of the Fourth Prosecutorial Department of the SPP, delivered at a press conference that the SPP is proactively guiding all the provinces to improve the handling of public interest litigation cases related to the protection of citizens’ personal information, anti-monopoly and anti-unfair competition on Internet platforms.
Since 2020, numerous Prosecutorial Civil Public Interest Litigations have been filed in emerging areas including the platform economy, covering issues of consumer rights defense, safeguard of minors, data security, personal information security, etc. For instance, on April 22, 2021, the SPP released 11 typical cases of public interest litigation on personal information protection handled by people’s procuratorates, addressing issues such as unauthorized collection, use, and leakage of users’ personal information. Based on the Performance of the Fifth Anniversary of the Comprehensive Implementation of Public Interest Litigation released by the SPP in June 2022, between November 2019 and June 2022, the nationwide people’s procuratorates dealt with more than 100,000 cases in emerging fields, among which 4,000 cases in the field of personal information protection and 180 cases in the field of anti-monopoly and anti-unfair competition.
Against the background of the current normalization of strict antitrust regulation, with the introduction of the Prosecutorial Civil Public Interest Litigation system in the New AML, a growing volume of antitrust cases of Prosecutorial Civil Public Interest Litigation are likely to emerge in future judicial practice, particularly in fields closely relevant to people’s livelihood, such as platform economy, public utilities, and pharmaceuticals. Therefore, we recommend that companies in the relevant fields prioritize antitrust compliance, promptly review their business practices to identify any antitrust compliance risks, and closely update information regarding antitrust legalization and practice.
*Appreciation goes to our firm’s interns Xin XU, Jiawei LIU, and Yuxuan LIU for their contributions to this article.
[1] Note: Besides civil public interest litigation, the people’s procuratorates are as well entitled to initiate administrative public interest litigation, as provided for in the fourth paragraph of Article 25 of the Administrative Litigation Law of the People’s Republic of China, that “where the people’s procuratorate finds in the performance of functions that any administrative authority assuming supervision and administration functions in such fields as the protection of the ecological environment and resources, food and drug safety, protection of state-owned property, and the assignment of the right to use state-owned land exercises functions in violation of any law or conducts nonfeasance, which infringes upon national interest or public interest, it shall offer prosecutorial recommendations to the administrative authority, and urge it to perform functions in accordance with the law. If the administrative authority fails to perform functions in accordance with the law, the people’s procuratorate shall file a lawsuit with the people’s court in accordance with the law.” Nevertheless, the administrative public interest litigation system falls outside the scope of this article, hence this article will not elaborate further on it.
