| GATT 1994 regulates the principle of National Treatment and Most-Favor-Nation Treatment(hereinafter referred as MFN).Like product are regulated in Article 1.1,Article 3.2 and Article 3.4 of the GATT 1994.Under WTO,there is no specific regulations and unified identification standard for like product,which are based on case to case to identify the like product.Above characteristics cause identify the like product in actual are uncertainty.Based on those conditions,the author tries to clarify the definition and identify standard of the like product.Except the introduction and epilogue,this article has five parts:The first part is "Definition of the like product".In this part,through analysis of the article 1 and article 3 of the GATT 1994,the author find that the meaning of the like product in article 3.2 will smaller than the like product in article 1.1 and 3.4.The definition of the like product included the broad and narrow sense.Broad sense of the product included narrow sense and direct competitive or substitutable product.The second part is "Identification standard of like product".In this part,the author analysis the mergence and development of the border tax standard and object and effect standard.Product's properties,nature and quality,product's end-uses in a given market,consumers'tastes and habits and tariff classification are included in border tax standard.Border tax standard based on the theoretical basis and interpretation method advantage to overcome the object and effect standard.But the border tax standard isn't perfect,which contains great uncertainty and give the panel and appellate body a great deal of discretion during the identification process,which will affect the fairness of the cases.The third part is "Like product's identification standard in WTO".In this part,through analysis the cases about the like product,the author find that new border tax standard and hypothesis like product standard.New border tax standard is the development of traditional border tax standard,which added the potential competition,degree of competitive and substitutable and so on.Hypothesis like product standard is the development of the object and effect standard,which avoid the object requirement of law and focus on the classification method of the product in the law.The fourth part is "Defect and perfecting suggestions for identification standard of like product".In this part,the author points that the new border tax standard exits the following problems:too much subjection judgment,weight of the factors are uncertainty.Hypothesis like product standard lacks the theoretical basis and identification method of which is too arbitrary.At the same time,the author analysis the application method of treaty interpretation in like product.Panel and appellate body adopts contextual,system and purpose interpretation method,and through constantly referencing the previous to formed the subsequent practice of the treaty interpretation.Based on the above analysis,author proposes a perfecting method for identification standard of like product,which is unify the identification standard and adopts the advantages of border tax standards,object and effect standard and hypothesis like product standard,tries to construct a hierarchical identification standard.The fifth part is "Enlightenment and reference of identification standard of like product for our country".In this part,the author clarifies that the research of identification standard of like product is benefit for our country's WTO disputes settlement and the Foreign Trade Law.For WTO dispute settlement,our country can use the subsequent practice to guide the practice and use different identification standard into the litigation strategy.For the aspect of Foreign Trade Law,our country can classified the different to regulate the national treatment and MFN,at the same time,can regulate the specific contents of national treatment and MFN,introduce the like product into it. |
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