Dingzhou Electric Power Bureau stipulates that Jenny DDS7 1 must be used as a single electric energy meter in rural areas. 75 yuan sells rice for more than 30 yuan, right? Is compulsory charging reaso

Dingzhou Electric Power Bureau stipulates that Jenny DDS7 1 must be used as a single electric energy meter in rural areas. 75 yuan sells rice for more than 30 yuan, right? Is compulsory charging reasonable? Defend one's rights and interests by legal means

I. Source of the case

On March 0 and 2, 2006, Chizhou Administration for Industry and Commerce 123 15 "Complaint Reporting Center received a telephone report and a written complaint successively, which reflected that a power supply limited liability company (hereinafter referred to as the party) forced the power consumption enterprise to accept its unqualified conditions within its jurisdiction, and in the name of" prepaid electricity fee ",it paid the electricity consumption enterprise. If the power consumption enterprise does not pay this fee, the power supply limited liability company refuses to provide power supply services. The Fair Trade Bureau of Chizhou Administration for Industry and Commerce reported to the Municipal Bureau after preliminary investigation and verification. Chizhou Industrial and Commercial Bureau filed an investigation on March 2, 2006.

Second, the illegal facts

From April 2003 to March 6, 2006, a power supply limited liability company charged 907,400.00 yuan from 6 1 household electricity enterprises such as Binhe Stone Powder Factory in Guichi District of Chizhou City in the name of "prepaid electricity fee". Our bureau investigated and verified 6 1 3 of the "prepaid electricity bills" and 13 of the electricity enterprises. And find out the following facts: when the parties take advantage of the dominant position of their public enterprises to provide power supply services to the power consumption enterprises within their jurisdiction before annual production, in order to prevent the power consumption enterprises from defaulting and not paying the electricity fee, they arrange their power consumption marketing departments to take the means of not providing power supply services to the power consumption enterprises and not paying the electricity fee in advance, and forcibly charge the enterprises with electricity consumption deposits of different amounts. The charging standard is KVA 100 yuan for transformers used by power enterprises, ranging from 5000.00 yuan to 103000.00 yuan. However, in the production process, power companies should pay the monthly electricity bill according to the actual electricity consumption. In practice, the offset electricity fee is not deducted from the prepaid electricity fee. Only when the party concerned is required to stop providing power supply services to the power consumption enterprise after the annual production, can the "prepaid electricity fee" be deducted from the actual electricity fee of the power consumption enterprise in the last month, and the "prepaid electricity fee" shall be paid by the enterprise. Up to the time of the crime, Chizhou Guichi Hua Ze Industry & Trade Co., Ltd. and other 13 household appliances enterprises * * * paid "prepaid electricity fee" of 293,000.00 yuan.

Three. Basis for identification and punishment

According to the investigation facts, Chizhou Industrial and Commercial Bureau determined that the party concerned, as the exclusive power supply enterprise within its jurisdiction, took advantage of its dominant position to collect the electricity fee deposit by charging "prepaid electricity fee" before sending electricity to users (not offsetting the electricity fee or rolling settlement, but occupying it for a long time without compensation), otherwise refusing to provide power supply service is against the buyer's will and belongs to compulsory transaction. Article 6 of the Anti-Unfair Competition Law stipulates that public enterprises or other operators with exclusive status according to law shall not restrict others from buying the goods of their designated operators, so as to crowd out fair competition of other operators. The legislative spirit of this article is obviously to prohibit public enterprises from compulsory transactions. It constitutes "refusing, interrupting or reducing the supply of relevant commodities to users and consumers who do not accept their unreasonable conditions, or overcharging" as stipulated in Item (6) of Article 4 of Several Provisions on Prohibiting Public Enterprises from Restricting Competition. According to the provisions of Article 23 of the Anti-Unfair Competition Law, Chizhou Administration for Industry and Commerce made a decision on April 27, 2006, ordering the parties concerned to stop the illegal act and fined them 180000.00 yuan. The party concerned refused to accept the punishment decision of our bureau and brought a lawsuit to Guichi District People's Court on June 20, 2006. After trial by the court, the courts of first and second instance made judgments respectively to maintain the punishment decision of Chizhou Industrial and Commercial Bureau.

Four. Analysis and comment

The focus of the trial of this case is mainly the application of law, and the parties have not raised any objection to the facts.

(1) The application of laws and regulations in this case is disputed by the parties, which is the focus of the dispute in this case. The parties and their entrusted agents believe that although the "prepaid electricity fee" is charged, it does not belong to the behavior of restricting competition, because there is no restriction on the relevant units to buy the goods of their designated operators, nor does it crowd out the competition of other operators operating the same business, so the behavior of the parties does not constitute the behavior of restricting competition of public enterprises. The departmental rules of the State Administration for Industry and Commerce have gone beyond the connotation and extension of the law, and cannot be used as a reference for hearing this case, nor does it violate the provisions of Article 6 of the Anti-Unfair Competition Law.

(2) During the court debate, our bureau held that the parties abused their dominant market position and forcibly collected the electricity fee deposit, otherwise they refused to provide power supply services, which was in line with the legislative purpose of the Anti-Unfair Competition Law to protect the legitimate rights and interests of operators and consumers. The parties belong to the public enterprises stipulated in Article 6 of the Anti-Unfair Competition Law, and whether their actions constitute compulsory trading is the key to this case. Chizhou City Administration for Industry and Commerce believes that the State Administration for Industry and Commerce's Reply on Qualitative Handling of Power Companies Forcing Users to Accept Their Unreasonable Conditions (Industrial and Commercial Word [2000]No. 143) clearly stipulates that "power companies are public enterprises as stipulated in Article 6 of the Anti-Unfair Competition Law". Power companies abuse their dominant position and forcibly collect the security deposit for electricity charges, otherwise they refuse to provide power supply services, which is in line with the legislative purpose of the Anti-Unfair Competition Law. The reply of the State Administration for Industry and Commerce (No.277 [1999]) clearly stipulates that the legislative spirit of Article 6 of the Anti-Unfair Competition Law is to prohibit public enterprises from compulsory transactions. The compulsory transaction of public enterprises refers to the behavior that public enterprises use their exclusive position when providing goods, which violates the principle of voluntariness and restricts the trading conditions of the counterparty. "Several Provisions on Prohibiting Public Enterprises from Restricting Competition" provides examples for the manifestations of compulsory trading behaviors of public enterprises, and those that constitute these compulsory trading behaviors should be investigated and dealt with according to law. That is to protect the legitimate rights and interests of operators and consumers. Because the actions of the parties have damaged the legitimate rights and interests of their users, they should be adjusted by the anti-unfair competition law. The State Administration for Industry and Commerce has the right to interpret the specific application of this Law, and its administrative interpretation belongs to the power of interpretation. The administrative punishment decision made by our bureau is clear in facts, legal in procedure and correct in applicable laws and regulations. The parties claim that it is "the only enterprise engaged in power supply and consumption within its jurisdiction, and there is no possibility of restricting other competitors, so the so-called fair competition theory of crowding out other operators cannot be established", which is a misinterpretation of the law and is wrong. Undeniably, the party concerned is the only enterprise engaged in power supply and consumption in this area at present, and it is in an absolute monopoly position in the power supply operation in this area. However, this does not mean that the actions of the parties do not violate the Anti-Unfair Competition Law, because the legislative purpose of the Anti-Unfair Competition Law is not only to stop unfair competition, but also to protect the legitimate rights and interests of operators and consumers (Article 1 of the Anti-Unfair Competition Law). The above-mentioned illegal acts committed by the parties by taking advantage of their monopoly position have damaged the legitimate rights and interests of their users, and are of course subject to the adjustment of the anti-unfair competition law. After hearing the above disputes, the court of first instance held that the parties, as power supply departments, are operators providing power services and belong to public enterprises as stipulated in Article 6 of the Anti-Unfair Competition Law. Although the parties did not crowd out the fair competition of other operators, they violated the principles of voluntariness, equality and fairness of operators in market transactions and abided by recognized business ethics. They force users to set unreasonable trading conditions to collect electricity deposit by charging "electricity purchase money" before sending electricity to power consumption enterprises, which belongs to unfair competition behavior of using monopoly position to overcharge and should be punished according to law. Chizhou City Administration for Industry and Commerce, in accordance with Article 6 of the Anti-Unfair Competition Law and Article 4 (6) of the Provisions of the State Administration for Industry and Commerce on Prohibiting Public Enterprises from Restricting Competition, punishes users and consumers who refuse, interrupt or reduce the supply of related commodities or overcharge, which is not improper and should be supported according to law. The parties think that the administrative punishment made by our bureau is wrong in applying the law, and their excuses are not in line with the legislative purpose of the Anti-Unfair Competition Law. The court refused to support it and made a judgment according to law: Chizhou Administration for Industry and Commerce (2006) Chi Gong Chu Zi No.23 punishment decision was upheld. After the judgment of the first instance, the parties still refused to accept it and appealed to Chizhou Intermediate People's Court. Chizhou City Administration for Industry and Commerce, after trial and debate, found that the facts were clear, the applicable laws and regulations were correct, and the procedures were legal, and supported them according to law. The court of second instance upheld the judgment of first instance in accordance with the first paragraph of Article 54 of the Administrative Procedure Law of the People's Republic of China.

This case is a successful case in which the administrative department for industry and commerce investigated and dealt with the compulsory trading behavior of power supply companies. The Fair Trade Bureau of Chizhou Industrial and Commercial Bureau successfully investigated and dealt with this case, and has three experiences:

First, handle cases in strict accordance with procedures. Because the parties to this case have exclusive status in accordance with the law, and the evidence collection in this case is mostly carried out in power consumption enterprises.

Second, scientific investigation and evidence collection, evidence interlocking is the basis for the success of this case. Because the power supply enterprises are full of domineering, for the sake of safety, the case handlers avoided the usual method of directly contacting the parties, began to investigate and collect evidence from the power consumption enterprises, and randomly asked the power consumption enterprises in different towns to collect evidence, and finally obtained the effective evidence of 13 household power consumption enterprises. When investigating and inquiring, ask questions objectively and peacefully, so that the parties can really answer the questions. In order to collect evidence that can prove the illegal facts, the case-handling personnel mainly investigated the ways, methods, means, quantity, time and related personnel of the power marketing department of a power supply company. After obtaining a lot of peripheral evidence and grasping the fact that the power supply company imposed unreasonable conditions on users to collect electricity charges, on the premise of ensuring not to "startle the snake", it took the initiative to attack the manager of the power marketing department of the company in time and obtained valuable evidence.

Third, the accurate application of laws and regulations is the guarantee for the success of this case. As the power supply company of Guichi District Power Supply Bureau, it has the dual status of power supply organ and power supply enterprise, and belongs to the public enterprise stipulated in Article 6 of the Anti-Unfair Competition Law. The company used its dominant position to impose electricity charges. On the one hand, it violates the principles of voluntariness, equality and fairness that operators should follow in market transactions and abides by recognized business ethics, and collects "electricity purchase money" before formally sending electricity to power enterprises.

In addition, in this case, a power supply limited liability company refused to accept the administrative punishment decision made by Chizhou Administration for Industry and Commerce and filed an administrative lawsuit with the courts of first and second instance. After investigation and trial, the court of second instance upheld the punishment decision of Chizhou Industrial and Commercial Bureau. On the other hand, it also reflects that Chizhou Industrial and Commercial Bureau clearly identified the facts of this case, the laws and regulations were correctly applied and the punishment was reasonable.