China Laws and Regulations Update in October 2019

1.Encryption Law of the People’s Republic of China

Promulgated by the Standing Committee of the National People’s Congress

Promulgation date: 26 October 2019

Implementation date: 1 January 2020                            

The Encryption Law states that main rules on commercial encryption including standard, inspection and certification, market access, use requirement, import and export, e-administration and e-certification service and in-process and post regulation rules on commercial encryption. (Source: Website of the National People’s Congress)

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Is Interest on Securities to be Repurchased in Excess of 24% Annual Interest Rate Valid? – Ma v Yang Securities Repurchase Contract Case

(By Bai Lituan)Securities repurchase is a financial activity of raising funds by selling securities and meanwhile signing an agreement with the buyer to repurchase the same securities at the agreed price and time. There are not many securities repurchase cases because it is not long ago that people in our country began to raise funds in this way. The first case decided by the Shanghai Finance Court is Oriental Securities v Honggao Zhongtai Securities Repurchase case.

Securities repurchase contract related laws mainly include the Securities Law, the Company Law, the minutes of meetings of the Supreme People’s Court on securities repurchase cases and the Notice on Restating Several Issues Connected with Further Standardizing Securities Repurchase Activities published by the Central Bank, the Ministry of Finance and the China Securities Regulatory Commission. All securities repurchase cases courts are dealing with come from the main, small and medium sized business and startup boards. My search result shows no securities repurchase cases relating to the new OTC board (the national share transfer system for small and medium sized businesses).

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Malicious Registration of “渣渣辉” Trademark! Zhang Jiahui VS Game Operator of Legend of Blue Moon

As media reported, Zhang Jiahui, a film star in Hong Kong recently applied for the “渣渣辉” trademark for all items under Class 45. I searched the database of the trademark office and found that Jiangxi Tanwan Information Technology Co., Ltd. (“Jiangxi Tanwan”), the operator of the game “Legend of Blue Moon” had applied for the same trademark before.

All the “渣渣辉” trademark applications filed by Zhang Jiahui would be rejected by the trademark office because of the prior applications. I noticed a big news that Zhang Jiahui and Jiangxi Tanwan were scrambling for “渣渣辉”, a valuable popular brand. Now let’s discuss how the two sides use laws to obtain the trademark.

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China Laws and Regulations Update in September 2019

1.Arrangements Between Courts of Mainland China and Hong Kong Special Administrative Region for Mutual Support in Preservation Under Arbitration Procedures

Promulgated by the Supreme People’s Court

Document number: L.I.(2019) No.14

Promulgation date: 26 September 2019

Implementation date: 1 October 2019                            

According to the Arrangements, arbitration procedures for preservation in Hong Kong and mainland China should be seen as similar, people to whom arbitration procedures of Hong Kong apply are allowed to file preservation applications to the people’s court of mainland China and people to whom arbitration procedures of mainland China apply may seek mandamus and other provisional remedies from the court of Hong Kong SAR. The Arrangements consists of thirteen clauses covering the preservation scope, evaluation of arbitration procedures of Hong Kong, preservation application procedures, processing of preservation applications, etc. (Source: Website of the People’s Court Daily)

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China Laws and Regulations Update in August 2019

1.Land Administration Law of the People’s Republic of China

Promulgated by the National People’s Congress

Document Number: No.32 President Order

Promulgation date: 26 August 2019

Implementation date: 1 January 2019

The amendments to the Land Law lifts the legal restriction on collective commercial construction land into the market. Collective rural construction land can be transferred, leased or given in other way to and directly used by organizations or individuals other than a collective rural economic organization after being permitted by the plan, legally registered and approved more than two thirds of members of the collective economic organization. The users can subtransfer the land in their possession by transfer, swap and pledge. (Source: Website of the National People’s Congress)

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As “Changing Face Images” Becomes a Hot Issue, Can ZAO Use Portraits of Its Users at Its Own Discretion by the User Agreement?

There is a widespread distrust in high tech companies around the world since the scandal of the Cambridge Analytic information of Bookface broke out. A user agreement for ZAO, a Chinese-made app for changing human face images in videos became a hot issue on the internet the other day because of its provision that no person can use the app without giving the right to use their face images permanently. Many people thought that the app developer Changsha SHEER Network Technology Inc. (“ZAO Company”) infringed the user’s portrait right and privacy.

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China Laws and Regulations Update in July 2019

1.Circular Notice on Issuing the Overall Plan for the Lingang New Area of the China (Shanghai) Pilot Free Trade Zone

Promulgated by the State Council

Document Number: G.F.(2019) No.15

Promulgation date: 27 July 2019

To follow the principles of the Notice, there will be a well-designed set of rules to facilitate free trade and investment in the new area, including allowing well-known overseas arbitration and dispute resolution organizations to do arbitration activities as businesses; creating the Yangshan Special Comprehensive Bonded Area to cancel unnecessary trade regulation, permit and process requirements on the basis of full implementation of comprehensive bonded area policies; studying and using free trade accounts that combine RMB and foreign currency payment functions on experimental basis, exploring free capital flow into and out of and free capital exchange in the new area; treating international transport by ships manufactured in the country and registered in “Yangshan Port, China” as exports entitled to tax rebate; implementing globally competitive tax rules and policies, reducing enterprise income tax and other tax rates applying to eligible businesses doing manufacturing and research activities in most important parts of key areas such as integrated circuits, artificial intelligence, bio-medicine and civil aviation in the new area to 15% within five years after the business establishment date. (Source: Website of the State Council)

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Comments on the Decided Case of “Explaining Pictures” from Three Lives and Three Worlds Woven Together by Secrets

(By Ni Tinggang) Beijing Internet Court recently closed a case arising from the right to transmit information on the internet, in which the defendant Shenzhen Shushu Technology Co., Ltd. (“Defendant”) transmitted a continuous series of pictures from the TV series Three Lives and Three Worlds Woven Together by Secrets (“Episodes in Dispute”) by using the method of “explaining a movie with pictures”, infringing the right to transmit on the internet proprietary information of the plaintiff Youku Network Technology (Beijing) Co., Ltd. (“Plaintiff”). The court decided the identity of the infringing person and the exclusion of reasonable use for good reasons. However, I have noticed that the type of works in question and the plaintiff’s eligibility decided by the court is questionable and worth discussion.

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China Laws and Regulations Update in June 2019

1.Rules on Human Genetic Resources

Promulgated by the State Council

Document Number: No.717 SC Order

Promulgation date: 10 June 2019

Implementation date: 1 July 2019

The Rules provides that foreign parties cannot collect or store China’s human genetic resources or transfer them to a foreign country; foreign parties that want to use China’s human genetic resources to do scientific research have to enter into cooperation with Chinese scientific research institutions, universities and colleges, medical institutions and businesses; to transfer China’s human genetic resources to a foreign country, permission of the administrative department of science and technology of the state council is required; to transfer human genetic resources or information to or make them available in a foreign country, the recordation process shall be completed and relevant information shall be filed; in a case that may affect the public health, national security and public interests of our country, passing the security investigation organized by the administrative department of science and technology of the state council is required. (Source: Website of the State Council)

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How to Protect Public Service and Product Marks

(By Lv Xuanxuan)Information about “one-stop online services” and the app of “in Shanghai” for the general public appeared on the official website of “the People’s Government of Shanghai” on 22 February 2019. Online “windows” such as “in Shanghai”, “With You”, “One-stop Online Services”, “On Your Hands”, “On Your Fingertips” give more convenience to the public to deal with administrative affairs. However, the application of the internet plus will make it more difficult to prevent “free riders” in the public service area. Search results generated by search tools in certain apps using key words about the above services frequently show account numbers and service marks that are very similar to or even the same as the official service names. This article aims to explore the protection of public service and product marks in hope of contributing to the construction of the “service government”[1].

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China Laws and Regulations Update in May 2019

1.Governmental Investment Rules

Promulgated by the State Council

Document number: G.L.No.712

Promulgation date: 5 May 2019

Implementation date: 1 July 2019

The Rules clarifies the definition, scope, decision making process, annual investment plan, implementation, supervision and management and legal liability connected with government investments. According to the Rules, government investment funds should be used in non-profit services, public infrastructure, agriculture and rural areas, ecological and environmental protection, significant technological advancement, social administration, national security and other public areas, mainly in non-business projects. All investors should be treated equally when allocating government investment funds. Discriminatory conditions are forbidden. (Source: Website of the State Council)

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Conditions You Should Meet for Free Use of Alibaba Fonts

Alibaba recently published a new type of fonts known as “Alibaba Puhui” and announced that its customers and people around the world are authorized to use the fonts for free. Actually, there are many legal risks in use of fonts. Let me tell you how to avoid or reduce these legal risks.

1.You can only use Alibaba Puhui fonts and cannot change them.

The legal statement on the platform of Alibaba fonts has made it clear that the fonts are free and can be used for commercial purposes but cannot be used by violating a law or published without due authorization. More importantly, Alibaba hasn’t given users the right to modify the fonts, unlike Siyuan fonts, another type of free open source fonts. The above legal statement[1] is as follows.

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China Laws and Regulations Update in April 2019

1.The Trademark Law of the People’s Republic of China

Co-promulgated by the Standing Committee of the National People’s Congress

Promulgation date: 23 April 2019

Implementation date: 1 November 2019

The main contents of this amendment are: 1. new regulations on bad faith registration: refusal of trademark registration applications for a purpose other than use of the trademark and including “trademark registration applications for a purpose other than use of the trademark” as a valid reason for claiming trademark opposition or invalidity; 2. giving more serious punishment for infringement of proprietary rights in the trademark by increasing the multiple used to calculate the amount of damages for a malicious infringement of proprietary rights in the trademark from larger than one but smaller than three to larger than one but smaller than five and increasing the upper limit on legal damages from RMB three million to RMB five million. (Source: Website of the National People’s Congress)

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Discussion of New Uses of the “Safe Harbour Principle” Based on Recent Cases

Article Fourteen of the Rules on Protection of the Right to Disseminate Information on the Internet provides that “a person may send a written notice requiring providers of storage space, searches, links and other internet services relating to a work, performance or audio or video product that the person believes infringes their right to disseminate information on the internet or causes their electronic information about management of their rights to be removed or changed remove or invalidate links to the work, performance or audio or video product”. Articles 22 and 23 of the Rules further provide that storage space, search, link and other internet services providers who have performed the removal obligations under the notice from the information owner do not need to pay compensation.

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China Laws and Regulations Update in March 2019

1.The Foreign Investment Law of the People’s Republic of China

Co-promulgated by the National People’s Congress

Promulgation date: 15 March 2019

Implementation date: 1 January 2020

This law will replace the Sino-Foreign Joint Venture Law, Foreign Funded Enterprise Law and Sino-Foreign Business Cooperation Law to be the legal basis for foreign investment in China. According to this law, organizational forms and structures of foreign funded businesses and their course of action should be governed by the Company Law, the Partnership Law and relevant laws, provided that foreign funded businesses set up before the implementation of this law may continue existing in their original organizational form. Foreign investment means direct or indirect investment made in China by natural people, businesses or other organizations in foreign countries, including establishment of a new business, merger and acquisition, creation of a new project and other forms of investment; Capital contributions, profits, capital gains, earnings relating to assets disposal, royalties from licensed use of intellectual property rights, legal redress or compensation, earnings relating to liquidation, etc. can be transferred in RMB into China or transferred in foreign currency out of China. The Chinese government protects intellectual property rights of foreign investors and foreign funded businesses and legal interests of people owning or relating to these intellectual property rights. The Chinese government implements the pre-establishment national treatment and negative list system for foreign investments and follows the principle of treating foreign and domestic investors equally when supervising and administering foreign investments. Foreign investments that will or may affect the national security will be inspected. (Source: Website of the National People’s Congress)

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