In early March of this year, Wang Xi-bin, an old-time consumer in Handan, Hebei, was told at the Beijing Mobile Business Office to handle the business of 'Global Access' when he was told that foreign resident households would need to pre-charge 500 yuan for calls and this pre-deposit can not be withdrawn. (Microblogging) Beijing company (hereinafter referred to as Beijing Mobile) approach discriminated against foreign residents, so he sued Beijing Mobile to a court case, requiring confirmation of Beijing Mobile's abuse of market dominance.
November 7, Beijing Intellectual Property Court hearing the case.
Provisions exist for more than a decade
Workers Daily News reporter found publicly reported that for foreigners in handling Beijing Mobile 'Global Access' network business needs pre-stored 500 yuan bill provisions as early as 14 years ago already exists.
At the end of August 2003, Mr. Han, who came to work in Beijing from outside the country, wanted to set up a 'Global Access' mobile phone card and did not run a few business offices because he was holding a foreign ID card. At that time, Beijing Mobile opened a business The hall staff explained to the media that not selling the 'Global Pass' card to outsiders is a requirement of 'above', for fear that foreigners will 'take it away'.
However, foreigners in Beijing to do 'Global Pass' card is not no solution.Beijing Mobile's a customer service staff said, either by Beijing's relatives and friends to guarantee access to the network, or have to save calls.
Beijing Mobile's move was questioned by some consumers as 'overlord clause' and allegedly discriminated against outsiders, however, there is controversy outside.
Mr. Wang, Complaint Division of the Consumers Association, once told the media that they had invited experts to argue that there is no good reason to consider it as a 'bully clause.' Mr. Wang also held a negative attitude as to whether such provisions contained discrimination against outsiders. Said that China's personal reputation files have not yet been established, and enterprises have done nothing to eliminate such unnecessary losses and avoid some risks.
In the '32 on March 31, 2008, on the eve of the Consumer Rights Day, the incident was exposed by the media when consumer activists said: 'It is understandable that an enterprise should safeguard its legitimate rights and interests but it must be based on the principle of protecting consumers' interests On the basis of this, we should not even divide consumers into 369 reasons, etc. This requirement of Beijing Mobile imposes its own business risk on consumers.
Consumers think the difference is treated
'I did not expect such an unreasonable provision even existed for more than a decade.' In Wang Xibin's view, Beijing Mobile simply because they are non-Japanese users suspect their own integrity and ability to perform, and thus differentiated treatment, in violation of its acceptance Telecommunications services should be respected and treated equally.
Wang Xi-bin claimed that according to the provisions of Article 17 of the "Anti-Monopoly Law," Beijing Mobile added 'other unreasonable conditions' to the provision of services to him at the same time without any justifiable reason for the 'transaction of the opposite party with the same conditions' Price and other trading conditions on the implementation of differential treatment, constitute infringement.
'Although my household registration is different from that of Beijing household registration people, it is a' counterparty with the same condition as civil registration 'in Beijing in terms of civil law. "Based on this, I think Beijing Mobile possesses an abuse of market dominance and poses a threat to me Infringement. 'Wang Xibin said.
The reporter noted that Article 17 of the AML provides that operators with market dominance are prohibited from engaging in the abuse of market dominance as follows: tying goods without justifiable reasons or attaching other unreasonable trading conditions at the time of transaction ; There is no justifiable reason to impose differential treatment on the conditions of the transaction such as transaction price for the counterparty with the same conditions.
Beijing Mobile said the warranty terms are legitimate
In response to the above statement, Beijing Mobile argued that the case is actually a dispute over telecommunications service contracts. Both parties entered into a "network service contract" on a voluntary and equal basis and the contract did not violate the mandatory provisions of the law and therefore the contractual provisions were true In addition, the "network service contract" is based on the Beijing Municipal Administration for Industry and Commerce, Beijing Municipal Communications Authority jointly issued the "Beijing telephone communication service network services contract" developed, of which the warranty terms exactly the same with the template content.
The reporter noted that "Beijing City, telephone communication services network service contract," the fourth paragraph of Article 1, Party A (user) to apply for post-paid communication services, such as where the domicile, residence (with valid identity card or residence permit Ming address) or legal residence (according to the business license or organization code certificate and other units contained in the unit shall prevail) is not in Beijing, should be in accordance with the requirements of Party B (communications operators) to pay the deposit or provided by the Beijing Municipal People's Government guarantee.
In order to effectively control the contract risk and ensure the security of the transaction, the guarantee clause in the contract is reasonable and legal, "said Fan Fan, legal representative of Beijing Mobile.
In response to Wang Xibin's request for the court to confirm Beijing Mobile's abuse of market dominance, Beijing Mobile argued that Article 8 of the Provisions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Disputes Caused by Monopoly Actions stipulates that The prosecution of a monopoly belongs to the abuse of market dominance as prescribed in the first paragraph of Article 17 of the AML, and the plaintiff should bear the burden of proof on the defendant's dominance in the relevant market and its abuse of market dominance.
'Defining the relevant market is a complex and professional issue that can not be subjectively assumed by the parties and it is a matter of professional matter to define whether a manager has a dominant market position in a relevant market or not from the parties' subjective assumptions. One said that even if Beijing Mobile is assumed to have a dominant market position in a relevant market, Beijing Mobile does not abuse its dominant market position.
Beijing Mobile also pointed out that 'GlobalCom' business payment method is to first accept the service, post-settlement costs, there is a settlement cycle between, so its business risk is greater than the prepaid fee, for foreign residents arrears recovery difficult Bigger, more problems, more risks and lower recovery rates.
At present, Beijing Intellectual Property Court has not yet made a decision on the case, this newspaper will continue to pay attention to the progress of the case.