中国 アンチダンピング法 2001/12 Back
2001/12/11 人民網日本語版
反ダンピング条例を公布 来年1月1日施行
「中華人民共和国反ダンピング条例」が2002年1月1日から施行される。
同条例は全6章59条で、主な内容は総則、ダンピングと損害、反ダンピング調査、反ダンピング措置、反ダンピング税と価格承諾の期限、再審査、付則など。
条例は反ダンピング措置を（１）臨時反ダンピング措置（２）価格承諾（３）反ダンピング税――の3つに分類。臨時反ダンピング措置の実施期限については、措置の決定発表から4カ月以内と規定。特殊な情況では9カ月まで延長できるとしている。反ダンピング税の徴収期限と価格承諾の履行期限は5年以内とするが、再審査を経て、徴収の終了がダンピングや損害の継続もしくは再発を引き起こす可能性があると認められた場合には、徴収期間を適切な期間に延長することができるとしている。
1999/5/24 人民日報
国家計画委員会、一連の価格法規を制定する予定
国家計画委員会は、できるだけ年内に「価格法違反行為への処罰規定」、「公定価格の政策決定に関する政務裁可規則」、「低価格によるダンピング行為を取締まることに関する規定」、「価格の独占、価格の詐欺、価格差別行為に対する認定、処罰に関する規定」などの法規、規定を制定することにしている。
＊これ以前の反ダンピング措置は「中華人民共和国反ダンピング及び反補助金条例」の関係規定による。
China's
Antidumping Laws and Regulations:
What
do they say? How do they affect U.S. exports?
Are they consistent with
WTO Agreement？
John Magnus Dewey Ballantine LLP ABA Panel
March 2002
http://www.dbtrade.com/publications/prc_antidumping_aba.pdf
This paper analyzes the Antidumping Regulation enacted by the PRC
in December 2001 (“PRC
Regulation”) from the
standpoints of (1) WTO-consistency, (2)thoroughness (identifying
areas in which added detail might be desirable for the benefit of
the trading public and the PRC administering authority), and (3)
effectiveness (suggesting ways in which the antidumping remedy
established in the PRC could be strengthened consistently with
WTO obligations). Part I of this paper covers those articles of
the PRC Regulation dealing with the determination of dumping.
Part II covers articles dealing with product identification and
injury. Part III covers articles dealing with antidumping
procedures.
I. DETERMINATION OF DUMPING
A. Normal Value
Under Article 4 of the PRC Regulation, there are three options:
(1) “comparable”
prices in the
exporting country; (2) prices of similar products
exported to a third country, or
(3) cost of
production plus reasonable expenses and profit. Methods (2) and (3) are in principle
available when “products
similar to the imported product do not have comparable prices at
normal trade in the domestic market of exporting countries
(areas), or the price or volume cannot be compared fairly with
similar products.”
B. Export Price
Under Article 5, there are three options: (1) price actually paid
or payable; (2) the price for which the imported product is
resold for the first time to an independent buyer; or (3) a price
constructed by MOFTEC on a “reasonable
basis.” Method (2) applies
in principle when “the
imported product does not have an export price or the price is
unreliable.” Method (3)
supersedes method (2) “if
the imported product is not resold to an independent buyer or is
not resold under the conditions at the time of import.”
MOFTE＝対外貿易経済合作部
C. Dumping Comparisons
Under Article 6, export price and normal value “should be compared according to fair and reasonable means,
taking into consideration various comparable factors which affect
price.” Article 6 reflects
a preference for comparing “the
weighted average of normal value and weighted average price of
total comparable trades,” or
for comparing normal value and export price “on an individual trade base.” Article 6 does allow comparison of “weighted average normal value with the
price of each individual trade,” but only “when huge export prices exist among
different buyers, areas, and times and it is difficult to make
comparisons using the {preferred} methods.”
II. PRODUCT COVERAGE AND
INJURY
A. Like Product and Subject Merchandise
Under Article 12, the like product is a product “identical to the dumped imported product”
or, failing that, the product “with the closest characteristics to that
of the dumped imported product.”
B. Domestic Industry
Article 11 defines the domestic industry as “all domestic producers of identical or
similar products,” or as “producers whose gross production volume
consists of the majority share of gross production volume for
identical or similar domestic products.” Article 11 excludes from the domestic
industry domestic producers who are “connected with exporters or importers,”
or who are themselves “importers dealing with dumped imported
products.” Article 11 also
provides that “if a
producer in a domestic regional market is marketing all or almost
all of its identical or similar products in that market, and in
addition, the demands of the market for identical or similar
products are not fulfilled by producers from other regions of
China, then the producer may be considered an independent
industry.” Article 10
provides that the impact of dumped imports should be evaluated “on a one-to-one basis with identical or
similar domestic products; when a one-to-one basis cannot be
made, there should be an examination of production within the
closest product category or scope of identical or similar
domestic products.”
C. Injury and Causation
Article 7 recognizes three types of injury -- material injury, threat of
material injury, and “the creation of obstacles
to the establishment of corresponding domestic industry” -- and
puts the State Economic and Trade Commission (SETC) in charge of
injury determinations. Articles 2, 28 and 37, along with Article
30 of the Foreign Trade Law, provide a general causation
requirement. Article 8 of the PRC Regulation sets out a single
list of factors to be considered by SETC in assessing both the
existence of injury/threat, and the causal relationship between
the injury/threat and dumped imports.
These factors include: (1) the quantity of dumped imports, both
absolutely and in terms of any market share growth; (2) the
prices of dumped imports, including any reduction in such prices
and the effect on the prices of like domestic products; (3) the
effect of the dumped products on “related economic factors and indexes of
domestic industry”; (4) the
production capacity, export capacity and “inventory situation” of the exporting country; and (5) other
factors causing injury to the domestic industry. Article 8
further states that injury findings must be based on positive
evidence “which does not
include the contribution of non-dumping factors.”
D. Cumulation/Negligible
Import Levels
Article 9(1) permits cumulative injury analysis of products
imported from two or more countries where the dumping margins for
each are above 2% and the volume shipped by each is not
negligible. Article 9(2) further specifies that “it is appropriate to make cumulative
estimates according to competitive conditions among dumped
products or between dumped products and {like} domestic products.”
Article 9(2) also
defines imports from a country as negligible when they account
for less than 3% of total imports of the like product, except that imports from a group of
countries individually accounting for less than 3% may be
cumulated if they collectively account for more than 7%.
III. PROCEDURAL ISSUES
A. Petition, Industry
Support and Initiation
Articles 13-14 provide that a petition may be filed by “a domestic industrial natural person,
legal person, or relevant organization … representing a domestic industry”
and must contain, among other
things, a complete merchandise description as well as evidence of
dumping, injury and a “cause-and-effect
relationship between dumping and injury.” Article 17 provides that the requisite
industry support exists if “the
production volume of those supporting the application is more
than 50 percent of the total production volume of supporters and
opponents,” unless
supporters’ production
volume
is less than 25 percent of total PRC production. Article 16
requires MOFTEC to “examine
the application and its attached evidence,” consult with SETC, and determine whether
to initiate “within 60 days
after receiving the application document.”
B. Provisional Measures
Article 24 provides for initial rulings by MOFTEC on dumping and
by SETC on injury, suggesting that the agencies will jointly rule
on whether a causal relationship exists between the two. Article
28 authorizes provisional relief in two forms: either a “temporary anti-dumping tax” or the “provision of a cash deposit, letter of
guarantee, or other form of guarantee.” Article 29 states that MOFTEC “may propose” a temporary antidumping tax, but that the
State Council's Customs Tariff Regulatory Commission “shall decide upon the imposition of”
such a tax. However, MOFTEC may
itself decide to require a cash deposit, letter of guarantee, or
other form of guarantee. Under Article 30, temporary anti-dumping
measures cannot be adopted during the first 60 days of an
investigation, and may remain in force for no longer than four
months from the date they are announced (except where extended to
9 months in “special
circumstances”).
C. Price Undertakings
Articles 31-36 provide for undertakings, which either exporters
or MOFTEC may propose following an “initial affirmative judgment.” There is no requirement that a proposed
undertaking be accepted by either side, but Article 33 provides
that when MOFTEC rejects a price commitment, it must explain its
reasons to the exporters involved. Article 32 provides, somewhat
confusingly, that (1) an exporter’s decision to decline a proposed price
commitment “will not affect
the investigation,” but
that (2) “should the
exporter continue to dump the imported products, the
investigating body has
the authority to evaluate the threat to injury at a higher
probability.”
An exporter may be required to “provide on a regular basis information and
documentation regarding its implementation of a price commitment,”
and under Article 36, if an exporter
breaks a price commitment, “MOFTEC
may decide to resume the anti-dumping investigation after
consulting with SETC ….
Basing its ruling on the best information obtainable, it may
decide to employ temporary anti-dumping measures, as well as
impose 90 days retroactive anti-dumping taxes on imported
products prior to implementation of the temporary anti-dumping
measures ….”
D. Verification of
Information and Reliance on Facts Available
Article 20 provides for “questionnaires,
surveys, hearings, and on-site investigations” and states that MOFTEC “may send work teams to the relevant
country (area) to conduct the investigation, provided the
relevant country (area) does not raise
objections.” Under Article
21, if parties “fail to
provide information and relevant documents, or fail to provide
essential information within a reasonable time frame, or
seriously obstruct the investigation by other means, the
investigating body may make a final ruling based upon facts
already obtained and the best information obtainable.”
E. Final Measures
Article 26 establishes a twelve-month investigation period and
permits this to be extended to a maximum of eighteen months. The
imposition of duties appears to be discretionary even where the
basic criteria for relief have been established. Article 37
states that “{i}f the final
ruling establishes the existence of dumping as well as resultant
injury to domestic industry, an anti-dumping tax may be imposed,”
and Article 38 explains that while
MOFTEC may “propose”
an anti-dumping tax, the State
Council's Customs Tariff Regulatory Committee has the final say
on whether to impose it.
Moreover, under Article 27, an antidumping investigation can be
terminated whenever MOFTEC and SETC agree that continuing it “would be inappropriate.”
F. Administrative Reviews
Article 49 provides that MOFTEC, “with appropriate justification and after
consultation with the SETC, may decide to reexamine the necessity
of continuing to impose {an} anti-dumping tax,” or may, “after examining corresponding evidence,”
refuse to conduct such a review.
Following a review, MOFTEC may propose to maintain, modify, or
revoke an anti-dumping tax, but the ultimate decision lies with
the State Council's Customs Tariff Regulatory Commission. If the
review involves an undertaking, however, MOFTEC may make the
maintain/modify/revoke decision itself after consultation with
the SETC. Article 51 provides that reviews should follow the same
procedural rules that apply to investigations, and be completed
within 12 months.
G. Sunset Reviews
Article 48 provides that anti-dumping taxes and price commitments
should remain in force no longer than five years. “However, if reexamination determines that
termination of the anti-dumping tax could lead to the resumption
of dumping and injury or their reoccurrence, the time period for
imposition of the anti-dumping tax may be
extended appropriately.”
H. Judicial Review
Article 53 allows interested parties to “apply for administrative reexamination”
or “file a lawsuit in people's court”
as a means of challenging: (1) a
final determination of dumping, injury or causation; (2) a
decision on whether to impose an anti-dumping tax or impose it
retroactively; (3) a decision on a duty refund or imposition of a
tax on a new exporter; or (4) the results of an administrative or
sunset review.
I. Other Provisions
Article 56 provides: “If
any country (area) implements anti-dumping measures which
discriminate against imported products from the People's Republic
of China, the People's Republic of China may adopt corresponding
measures against that country (area) based on the actual
situation.”
Lehman Lee & Xu 隆安律師事務所 http://www.lehmanlaw.com/indexx.htm
Antidumping Law
Q&A
What
is dumping?
"Dumping"
means selling imports in China at prices lower than their normal
value. The
difference between normal value and export price is termed
"dumping margin".
What
is Anti-dumping?
Anti dumping refers
to a legal system under which the government of a country
investigates the dumping of imports and take corresponding
anti-dumping measures in accordance with the law. It is a measure
internationally adopted to stop unfair competition, regulate
international market order and protect the security of the
national industries. It is adopted by an increasing number of
countries as it is playing an increasingly important role in
international trade.
How
is normal value determined?
The normal value can
be determined by a comparable price of a similar product in the
exporting market, or a comparable price of a similar product in a
third country, or constructed while considering production cost
plus an amount of general costs and profits. Although no express
order of applicability is given in the Regulations as to the
above three ways of normal value determination, it has become an
accepted rule of practice to apply firstly the order of the export
market price, secondly the third country price and thirdly a
constructed price.
How
is the export price determined?
The price that is
actually paid or should be paid for the imports is the export
price. If there is no actual paid price or due to be paid price,
or such price cannot be determined, the export price may be
constructed on the basis of the price at which the imports are
first sold to an independent buyer, or on such reasonable basis
as MOFTEC and General Customs Bureau may determine.
What
is injury and how is it determined?
Injury shall mean
material injury to an established domestic industry, threat of
material injury to a domestic industry or material retardation of
the establishment of a domestic industry. A determination of
injury should be based on the investigation on 1) the volume of
dumped imports; 2) the price of dumped imports, i.e. its
reduction and impact on a similar product in the export market;
3) the impact of dumped imports on the domestic industry; and 4)
the capacity of production, exportation and inventory of dumped
imports in the exporting country.
How
are dumping cases initiated in China?
Normally cases begin
after a dumping petition is filed by an industry (major producers
or relevant organizations) producing the dumped products or
similar products. Petitions are usually filed with the Ministry
of Foreign Trade and Economic Cooperation (MOFTEC), which decides
whether to initiate an antidumping investigation after review of
evidence provided by applicants and consultation with the State
Economic and Trade Commission (SETC). If an antidumping
investigation is initiated, a public notice should be given to
the affected and interested parties.
How
are the authorities handling antidumping cases in China?
After a case is
initiated, MOFTEC, together with the General Customs Bureau, will
investigate the existence of dumping and a dumping margin. The
SETC, together with relevant industry authorities, will
investigate in the existence of injury and injury level. The
investigation will usually take 12 months, or under special
circumstances, 18 months before final determinations are given.
During the period, the two authorities may give preliminary
determinations no earlier than 2 months after the date of
initiation, resulting either in provisional remedies or
cancellation of investigations. Both authorities as required by
interested parties may hold evidentiary hearings.
What
are the remedies for dumping?
If preliminary
determinations by both MOFTEC and SETC are affirmative of the
existence of dumping and injury, either a provisional antidumping
duty is levied on the dumped product, or a cash deposit or other
types of bonds or securities are imposed. The duration of
provisional remedies is 4 months or 9 months under special
circumstances.
If MOFTEC and SETC
finally determine that both dumping and injury exist and dumping
margin is not neglectable, definitive antidumping duties will be
imposed and collected on the dumped imports.
Proceedings of
antidumping investigation may be suspended without the imposition
of provisional remedies or definitive antidumping duties when any
exporter or the government of exporters' country provides
voluntary undertakings to eliminate the injury of dumped imports
to domestic industry.
What
is the retroactivity of antidumping duties?
Antidumping duties
are usually not retroactive. But a definitive antidumping duty
may be levied retroactively on products imported not more than 90
days prior to the date of publication and application of
provisional remedies, if 1) there is a history of dumping of the
product which causes injury or the importer was, or should have
known the practice of dumping by the exporter and such practice
would cause injury; and 2) the volume of dumped products sharply
increased in relatively short period of time and has already
caused injury to domestic industry.
What
shall I do if an antidumping investigation is initiated against
my exports to China?
When domestic
industry files an application with MOFTEC, which is then
accepted, a public notice of initiation of antidumping
investigation will be given by MOFTEC. Notification through
diplomatic channels may also be made prior to the public notice.
You should contact MOFTEC and participate in antidumping
investigations within 20 days after the date of public notice.
You can engage local lawyers in filling out a questionnaire,
representing and defending yourself in evidentiary hearings at
MOFTEC and SETC, proposing price undertakings, applying for
administrative reviews etc.
Can
antidumping duties be reviewed after the final determination?
The duration of
definitive antidumping duty and price undertakings is 5 years,
during which MOFTEC and SETC may voluntarily or as required by
interested parties, conduct administrative review of such duties.
Such review shall be finished within 12 months after the
initiation thereof. Although not specifically mentioned in the
laws and regulations, such reviews may include changed
circumstances review, new shippers' review and sunset review as
they are internationally defined. The results of such review
should be made public by MOFTEC.
Is
there any judicial review of antidumping duties?
No. Antidumping laws
and regulations of China do not provide for judicial review of
the duties under the present legal framework. The absence of
judicial review is in contradiction with WTO rules but will more
likely than not to be changed after China's accession to WTO.
After
entry into the WTO, how will China change its anti-dumping laws
and regulations to conform to WTO commitment?
Before China entered
the WTO, its anti-dumping laws and regulations were composed of
the PRC Foreign Trade Law, The PRC anti-dumping and anti-subsidy
Regulations, and several departmental rules promulgated by the
Ministry of Foreign Trade & Economic Cooperation (MOFTEC),
The State Economic & Trade Commission (SETC) and the General
Customs Administration (GCA). Now, after China's accession to the
WTO, the related authorities are committed to drafting and
formulating departmental rules related to anti-dumping
investigative procedures. In addition, some important rules and
provisions will be added to the existing regulations to further
define the basis for fair comparison between the export price and
normal value, the prerequisites for cumulative assessment,
detailed rules related to the undertaking, newcomer review and
interim review and possibly judicial review.
How
will China reform its investigation procedures to better relocate
the power and the responsibilities of anti-dumping investigations
after China's entering into WTO?
According to China's
existing legislation, five authorities are involved in
anti-dumping investigation procedures. They are MOFTEC, GCA
(General Customs Administration), SETC (State Economic &
Trade Commission), an agency under the State Council and the TCSC
(Tariff Commission of the State Council). MOFTEC and GCA are
mainly responsible for the investigation into whether or not
dumping took place; TCSC is responsible for determining the
anti-dumping duty; the other two authorities are responsible for
the causation and injury investigations.
However, in order
for the anti-dumping investigation procedures to conform to
China's WTO commitments, a fundamental reform is being
undertaken. According to current information, GCA and the
relevant agency under the State Council will no longer be
involved in the investigation procedures. Instead, MOFTEC and
SETC will jointly be responsible for the causation investigation.
Whether or not there exists any injury borne by the domestic
industry will be decided by the investigation carried out by the
SETC and the Ministry of the relevant industry. The TCSC will be
renamed as the State Tariff Commission and will continue to be
responsible for the decision regarding the anti-dumping duty.
In order to beat the
challenge posed by the increasing number of anti-dumping
caseloads, MOFTEC has established the Import/Export Fair Trade
Bureau, where there is also an anti-dumping office. In the
meantime, the SETC has correspondingly established its Bureau of
Industry Injury Investigations with its own Anti-dumping Office.
What
are the characteristics of anti-dumping measures against Chinese
exports?
According to
statistics released by the WTO, China is the country most
frequently targeted by other countries for anti-dumping
investigation against its exports. Foreign anti-dumping measures
against Chinese goods have the following characteristics:
The variety of
Chinese goods brought under anti-dumping measures is on the
increase. Since the first anti-dumping case against Chinese
exports, Chinese goods under anti-dumping investigations vary
from labor-intensive products or easily processed products, such
as mineral products and chemical products, to textile products,
clothing, light industry products, home electric appliances,
hardware, chemical products, mineral products, medicine and farm
produce.
Many countries, such
as Germany, France, Italy, Japan, Mexico, Argentina, Venezuela,
South Africa, Nigeria, South Africa, Nigeria, India, South Korea,
New Zealand and Turkey have filed anti-dumping lawsuits against
China. Some countries impose duties at a very high rate on
Chinese exports. In 1993, Mexico launched large-scale
anti-dumping investigations against Chinese exports, imposing
temporary anti-dumping duties 315% percent on toys and 1,105% on
footwear, the highest rate ever set.
More and more
countries are also beginning to bring re-exports under the scope
of anti-dumping investigations. This means that exports
originally made in China and directly exported or indirectly
exported through Hong Kong or other regions are also becoming the
target of anti-dumping investigations as more countries are
adopting the rule of the origin of products as being the target
of anti-dumping suits.
What
is the situation of anti-dumping in China?
On December 10,
1997, China filed its first anti-dumping lawsuit against the
dumping of newsprint in the country. The number of anti-dumping
cases filed by China has been steadily increasing since then.
Compared to 1997 when there was only one case filed, there were a
total of five cases filed in 2001. Although in the year 2000,
China was the country with the largest number of anti-dumping
charges filed against it, it was also the country that filed the
smallest number of such cases in the same year.
「人民網日本語版」2003年5月6日
初の外資系上場企業は日本資本企業か
「北京青年報」が伝えたところによると、日本資本の寧波（ニンポー）東睦新材料持株有限公司がこのほどA株の申請を中国証券監督管理委員会に提出し、すでに同委員会の審査批准を受けた。新たに4500万株を発行し、約4億元の資金調達を計画するという。同じく外資系の上海斯米克（CIMIC）建築陶ジと浙江省上虞市の国祥制冷の上場申請も、審査の最終段階に入ったとみられ、複数の証券界関係者がこれを確認している。実現すれば、近く上海および深センの両証券取引所に、相当量の外資系企業の株式が出現することになる。
寧波東睦のホームページによると、同公司の資本金は4億元以上。主に自動車、オートバイ、冷蔵庫、コンプレッサー、電動工具、電化製品の部品を製造し、製品の一部を日本、米国、欧州に輸出する。同公司の前身は寧波東睦粉末冶金有限公司で、1995年より日本の睦特殊金属株式会社の出資を受けて合弁企業となった。2001年10月には持ち株比率を見直し、睦特殊金属が株式の60％を保有することとなった。
外資企業が証券市場に参入するには、次の6条件を満たさなければならない。
1 株式制度改革を行って外資持ち株有限公司になること
2 国内での登録を済ませること
3 3年以上続けて利潤をあげること
4 資産再編の関連規定に基づいて上場すること
5 1年間、上場のための指導を受けること
6 国家の産業政策に抵触しないこと