By Albert Chen
The most watched copyright battle between Chinese Writer Alliance (the “Alliance”) and Apple was heard in Beijing No.2 Intermediate People’s Court on the 11th of this month. You may have read our previous essay on the private hearing of the case, and in fact, Apple has also filed an objection to the jurisdiction in the case. Nonetheless, the application was refused by the intermediate court and upheld by the high court after appeal. The lawsuit has been delayed by procedure for nearly half a year, as favored by Apple. Today, we are going to introduce the regulation on the objection to civil jurisdiction in China.
I. How to file the objection?
As provided in Article 38 of Civil Procedure Law, “If a party rejects the jurisdiction of his case after the case was accepted by a people’s court, the party shall raise the rejection during the period for submitting briefs. The people’s court shall examine such objection. If the objection is tenable, the people’s court shall rule that the case be transferred to the people’s court that does have jurisdiction over the case; if the rejection is untenable, the people’s court shall overrule the objection.” With such regulations, we hereby analyze the objection to jurisdiction as follows:
1. When to object?
The above article indicates that the objection is to be applied during the period for submitting briefs after the case is filed in the court. And by Paragraph 1 of Article 113 of Civil Procedure Law:
“The people’s court shall deliver a copy of a motion of complaint to the defendant within five days from its acceptance of a case, and the defendant shall file a motion of defense within 15 days after receiving the copy of the motion of complaint.”
The above described “period for submitting briefs” shall refer to 15 days after the acceptance of the copy of a motion of complaint by the defendant.
2. Who can file the objection?
The only regulation is that “a party” may file the objection, yet there is no definition of such a party. Generally, it could be considered to include the plaintiff, defendant, or a third party and the witness. However, in practice, we see a narrower definition, with only the plaintiff and the defendant allowed to file an objection.
As to other subjects excluded from the “party”, such as a third party with no independent claim, their options are stipulated in Article 66 of Several Opinions on the Application of Chinese Civil Procedure Law by the Supreme People’s Court (the “Procedure Opinions”):
“In the lawsuit, the third party with no claim may enjoy the rights and obligations of the party, and the third party with no claim who has been judged to take the civil liability may appeal the case to a higher court. Yet such third party shall have no right to file the objection to the jurisdiction in the first instance, and shall either have the right to abandon, change or withdraw the claims.”
Therefore, the third party with no claim shall have no right to object. For the third party with a claim, despite they may file an objection to the jurisdiction, considering the fact that its participation in the lawsuit is mostly after the legal period, namely the period of briefs. So for this reason, for few situations we could see their objections filed in the lawsuit.
II. Why the objection could delay the period of lawsuit?
The above Civil Procedure Law’s provisions only regulate the period and subject of the objection filing, with no specific regulations on the timing of the application. As checked with relevant regulations, I could only find two rarely quoted documents regarding the clause on the period, which is 15 days in “Regulations on Strict Execution of the Civil Procedure Law in Hearing the Economic Disputes”, and as longest as 4 months in “Regulations on Strict Execution of Period of Lawsuit”. But the 15 days could only be applied in economic cases, which is in fact be rarely used, and the 4 months period is solely for the mediation by the Supreme Court for the jurisdiction dispute between the lower level courts.
According to our experiences, the court accepting the objection will issue the adjudication on the approval or refusal on the application within 1 or 2 weeks of such application. If either party is unsatisfactory with the adjudication, it may appeal it to the higher court within 10 days after the adjudication, and the appeal court will also make its decision within 1 or 2 weeks. Despite the short period of the hearing, the documents of the case may be in transit for 1 or 2 months. Therefore, the objection to jurisdiction will consume another 2-3 months in the lawsuit period in a main city like Shanghai, and even a longer period in remote areas.
Therefore, in many cases the party in a disadvantageous position would benefit from delaying the period of lawsuit using a jurisdiction objection, just like what Apple has done in its battle with the Alliance. For this, our suggestion is: the objection to the jurisdiction is the legal right to either party in the lawsuit, and the filing by the defendant is of no violation against the law, but once the plaintiff argues that the objection is only a time-wasting strategy of the defendant, with the purpose to destroy the evidence or remove the asset, an application for evidence or property preservation is necessary.
Other recommended posts on our website:
1. The Actual Term of Trademark Registration in China
2. How to Apply for the Trademark Record in China Custom
3. How to improve the success rate of trademark registration in China?
4. Matters for Attention in Trademark Refusal Review in China
5. Introduction of China’s Legal System of Trademark Renewal
6. Introduction on the Regulations concerning the Capital Contribution in IPR or Domain Name in China
7. The Copyright Registration in China Could Be FREE?
8. China Copyright Protection Term Longer than EU’s?
9. Matters for Attention in the Patent Preliminary Injunction Application in China(I)
Lawyer Contacts
You Yunting
86-21-52134918
youyunting@debund.com, yytbest@gmail.com
For further information, please contact the lawyer as listed above or through the methods in our CONTACTS.
Bridge IP Law Commentary’s posts, including the comments and opinions contained herein, shall not be construed as the legal advice on any issues related. The contents are for general information purposes only. Anyone willing to quote or refer the posts to any other publications or for any other purposes, no matter there’s benefits gained or not, shall first get the written consent from Bridge IP Law Commentary and used under the discretion of us. As to the application of the reprint permission for any of our posts, please email us to the above addresses. The publication of this post or transmission of it through mail, internet or other methods does not constitute an attorney-client relationship. The views set forth here are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works.
Short Link: