| Due to the subprime mortgage crisis, the U.S. is undergoing an economic decline. Meanwhile, the sensitive topic of the trade deficit in Sino-U.S. trade is now demonized by different interest groups in U.S. domestic country, which brings along with the arising of trade protectionism and leads to the U.S. Department of Commerce's (DOC) breaking down the modus operandi of"not applying countervailing measures to non-market economy country". In addition, the U.S. Court of International Trade ruled that the DOC had the administrative discretion of applying Countervailing duties to non-market economy countries. Consequently, the enforcement of Anti-dumping and countervailing duties measures (AD and CVD) simultaneously to import products from China has blownout. The statistics show that since the Coated Free Sheet Paper case, the U.S. DOC has launched 22 AD and CVD investigations to the products from China, which affects the Chinese export enterprises and interests of domestic industry seriously.Many Chinese scholars hold the idea that the U.S. DOC's applying AD and CVD simultaneously to Chinese products is illegitimate, which violates the jurisprudence of No Double Jeopardies and the WTO legal system. In contrast, through the study of the legal reasons for applying AD and CVD simultaneously to Chinese products by U.S., the WTO legal system of anti-dumping and anti-subsidy law and the China's WTO Accession Protocol, the author finds the conclusion that it is legitimate, both from the international law perspective and the U.S. domestic legal system aspects, for the U.S. DOC to apply AD and CVD simultaneously, though China is now under the transition economy market status(transformation from planning economy to market economy status). Meanwhile, the author finds DOC's abusing of administrative discretion during the course of AD and CVD investigations, which mainly reflects in three aspects: the identification of subsidies of the Chinese government, the defining of Chinese government policy documents as the legal documents and the determination the external benchmark for RMB interest rate. Based on the above, the author focuses on two typical aspects: the choosing of the external benchmark for the calculation of dumping rate and subsidization rate and the double taxation under the U.S. DOC's applying the AD and CVD simultaneously to Chinese products, through the specific analysis, the author finds that the double taxation is inevitable due to the applying of external benchmark to calculate the dumping rate and subsidization rate in the same investigation, and the new judgment held by the U.S. Court of International Trade to the Off–the-Tire case ruled that the U.S. DOC's applying AD and CVD to Chinese products simultaneously is unreasonable, which support the author's conclusion strongly.Finally, due to the transition to the market economy status and the blowout situation of AD and CVD investigation applied by U.S. DOC to China, the author raises several legal solutions from the internal and external perspective so as to ease the pressures of the U.S. tendency of trade protectionism.This thesis is composed of three parts: the introduction, the main body and the conclusion and the main body goes to the following five chapters:Chapter one is the overview of United States'applying AD and CVD simultaneously to Chinese products. Through the comparative study of analyzing the legal reason for applying the AD and CVD simultaneously by U.S., the WTO anti-dumping and anti-subsidy legal system and the china's WTO accession documents, the author get the conclusion that there is no legal obstacles for the U.S. Department of Commerce (DOC) to enforce AD and CVD to china under the transforming economy status.Chapter two focus on suspicions for DOC's abuse of law and administrative power during the course of applying the AD and CVD measures, which mainly reflect in the problems existing in American standard to confirm specificity of subsidies and the obligation of positive evidences, the arbitrary identifying the Chinese government documents as legal documents and the practice of choosing external benchmark for RMB loan rate.Chapter three is about the comparative benchmark for AD and CVD measures enforced by U.S. DOC to China. This chapter analyzes firstly the American Non-Economy Market Rules and the influence of its ambiguous and political nature to the judgment of Chinese economy market position. Then the thesis discusses respectively the comparative benchmark of applying surrogate country information to the calculation of dumping rate and subsidized benefit. The anti-dumping perspective includes the Factors of Production Method, the Industry-Oriented Test, the One Country One Taxation system and the separate rate; the anti-subsidy perspective includes the comparative benchmark to the calculation of government subsidized benefit of loan, goods or services and the right to the use of land.Chapter four focuses on the analyzing of double taxation exists in applying the AD and CVD simultaneously by U.S. DOC to Chinese products. The chapter commences on the legal reason to avoid the double remedies under the market economy status. Then due to the Chinese transforming economy position, the chapter makes a detailed analysis of the export subsidies and domestic subsidies, which lead to possibility of double taxation by applying external benchmark to calculate dumping rate and subsidized amount. The author here applies the judgment of U.S. Court of International Trade to the GPX Of-the-Road Tire case (Sep. 18, 2009) to verify the practice and interpretation of U.S. DOC's calculating the dumping rate and subsidy amount is unreasonable. In the end , the author make a conclusion that due to china's transforming economy status and the surrogate country information rules, the enforcement of AD and CVD simultaneously to Chinese products will lead to double taxation universally.Chapter five is the legal solutions to U.S. DOC's applying AD and CVD simultaneously to Chinese products. the solutions goes into two perspectives: the internal legal solutions include the improvement of the Chinese government's subsidy review mechanism, to modify the subsidy projects so as to meet the obligations under the WTO rules and to establish and improve the early warning mechanism and coordinating and cooperation mechanism for AD and CVD investigation; the external legal solutions include the defense of china's market economy status, the defense of surrogate country information and separate rate, the utilizing of the American judicial review mechanism and the WTO disputes settlement mechanism. |
