The Issue Of Claim In Interconnection Litigation

Since2004, the Department of Ministry and Information managed to draft the Act of Telecommunication Law of People’s Republic of China, which brought a discussion among scholars. Nowadays, however, the Act has still not been finished because of many reasons. Without such a systematic and professional legal protection mechanism, the claim issues in telecommunication litigations become a severe problem. Specifically, with the combination of three standards and the emergence of the fourth main telecommunication subscriber, we would have to pay more concerns on the issue of interconnection. The discussion of claim issues in the interconnection litigation arises from this specific circumstance.The reasons why the interconnection claim is hard to realize are that1) the administrative regulation is not work efficiently,2) the legal protection is still developing,3) the judicial system is still not neutral, and4) users fail to enforce their rights. This article serves for analyzing the key issues in the interconnection claim issues, by learning scholar literature about Ten Countries Telecommunications Law, excerpting related laws and regulations, and comparing those rules with our legislature, including legislative law, civil law, law of civil procedure, administrative law, law of administrative procedure, contract law, consumer protection law, telecommunication regulation, and other laws and regulations. From whether the interconnection issues can be sued, whether users have claims, and how to bring out the suit, including practicing details, based on the four roles in a suit (user, domestic subscriber, foreign subscriber, and regulating agencies), there are two main issues: administrative procedure and contract. Based on the existing theories, like the nature of interconnection, the boundary of rights and obligation, the nature of international interconnection contract, indirect agency, and factual contract, the analysis aims to figure out four main legal relationships:domestic subscriber and regulating agencies, user and regulating agencies, user and domestic subscriber, and user and foreign subscriber. The main conclusion of this article is that without the Act, the user’s claims to file a suit for interconnection issue should be based on two specific circumstances:1) when the international roaming service is deficit, the user may allege, based on the theory of indirect agency, the "right of choice" to foreign subscriber and domestic subscriber, or2) when the domestic subscriber fails to allege for the debt, user may allege for damages against foreign subscriber, based on the subordination theory.