Study On Anti-circumvention Under Anti-dumping Law And Anti-subsidy Law

Circumvention and anti-circumvention is the necessary product of the development of anti-dumping law and anti-subsidy law under the progressively compete of the international trade. The implement of anti-circumvention law is helpful for safeguarding the effect of the anti-dumping law and anti-subsidy law. But at the same time,it is possible that the anti-circumventing rule would be applied as a new means for Trade Protectionism, and would influence foreign trade and foreign investment severely all over the world. So the anti-circumvention legislation has aroused widespread concern in the international community. Although the anti-circumvention law is based on domestic law and has not form a unified anti-circumvention international rule, with the development of international anti-dumping law and anti-subsidy law,a unified rule of anti-circumvention must be formed in the frame of WTO.After Kennedy Round and Tokyo Round, the contracting parties of GATT undertook the duty of tariff concessions, so that the tariff level has been largely reduced. On the other hand, due to escalation of trade war among countries, some developed countries began to strengthen their non-tariff trade barriers, especially anti-dumping measures. Under this circumstance, the exporters that have been levied on anti-dumping taxes came up with all kinds of counter-measures to circumvent anti-dumping measures.The emergence of the anti-circumvention rules was linked with the"screwdriver case", at the end of 1980s. At that time, with the increasing improvement of anti-dumping law both in substantiality and procedure, after been taken anti-dumping sanctions, some exporters, especial Japanese and Korean exporters, exported accessories or raw materials of the same products to the import countries where they assembled or produced the same products and put them into commercial scopes again, or changed the shapes of the same products or further processed them and then exported to the original import countries once again, or exported the above mentioned accessories to the third country where they were assembled or processed and exported these finished products from the third country to the original import countries so as to circumvent the anti-dumping duty. In the face of these circumvention conducts, EU and the USA constituted special provisions on circumvention conducts in the anti-dumping law, that was anti-circumvention rules.There are mainly three systems of international anti-circumvention rules, the first one is EU anti-circumvention rules, whose core is Article 13 of 3283/94 Regulation passed by EU Council; the second one is US anti-circumvention rules, whose cores are the clauses under the Omnibus Trade and Competitiveness Act (1988) and the case law; and the third one is the anti-circumvention clauses in Dunkel draft which were discussed during the Uruguay Round Negotiations. But the anti-circumvention rules in Dunkel draft markedly distinguished from that of the USA and could not meet USA's needs of protecting its domestic industry, so the anti-circumvention rules was obliterated from Dunkel draft. In the following series of consultations and negotiations, because there is fundamental differences in anti-circumvention between the export-oriented country such as Japan, South Korea and the USA, EU, and both sides did not compromise, so up to now, the justness of the anti-circumvention clause is still under dispute. The anti-circumvention legislation is mainly embodied as the anti-circumvention rules in the nation's domestic anti-dumping law, and there is no unified anti-circumvention rule on international level.In China, there is important theoretical and practical significance on the study of anti-circumvention. With the development of foreign trade, many countries initiated anti-circumvention investigation on our products. But because the anti-circumvention legislation in China is relatively laggard and can't effectively regulate foreign manufacturers actions of circumvented our anti-dumping and anti-subsidy measures, which reduced the protection function of anti-dumping and anti-subsidy measures. Therefore, it is particularly important to improve our anti-circumvention rules by learn from foreign advanced legislation. EU and the USA, as the pioneers of anti-circumvention legislation, have many advantages in both theory and practices, which are worthy to learn. The Immunity System, Custom Registration System and other procedural provisions improve the efficiency of anti-circumvention applications. The US anti-circumvention legislation specified the types of circumvention in detail, introduced International Trade Commission as an counseling agency, and included the verdict of Department of Commerce in judicial review have great benefit to punish the circumvention actions exactly and apply the anti-circumvention measures properly. Although the anti-circumvention rules were deleted from Dunkel Draft eventually, when EU and the USA amended their domestic anti-circumvention rules, Argentina, Mexico, South Africa and other countries laid down their own anti-circumvention rules all draw on the Dunkel Draft. So it is necessary to perfect China's anti-circumvention legislation by fully investigated the anti-circumvention rules of EU, the USA and Dunkel Draft seriously.The purpose of this thesis is to study the history,status,legality and rationality,developing tendency of anti-circumvention measure legislation,and give some suggestions on perfecting China's anti-circumvention legislation. This thesis will deeply analyze and discuss anti-circumvention measures on the basis of comparative and case-by-case analysis.The article is divided into four parts. Part one Basis Theory of Anti-circumvention introduces the emergence of anti-circumvention measures,then concludes the categories of circumvention and the tendency of it. Part two the Legitimacy of Anti-circumvention legislation analyzes the rationality and legality of anti-circumvention rules, in order to justifies the legitimacy of anti-circumvention legislation, which provides theoretical support for China's anti-circumvention legislation and international unified anti-circumvention legislation. Part three WTO and International Anti-circumvention Legislation reviews the course of history of ant-circumvention legislation in GATT/WTO, discusses the anti-circumvention rules in Dunkel Draft Uruguay, elaborates the differences in establish a uniform legislation on anti-circumvention of international community through the IG's discussions and Doha Round Negotiations, prospects the future of international unified anti-circumvention legislation through analyzing the necessity of establish a unified legislation. Part four Thoughts and Suggestions on China's Anti-circumvention Legislation analyzes the present situation and existing problems of China's anti-circumvention legislation, and then illustrates the actuality and necessity of perfecting our anti-circumvention legislation, in the end, gives some suggestions on how to perfect our country's anti-circumvention legislation.