China Laws and Regulations Update in October 2020

1.Patent Law of China (Revised)

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

Promulgation date: 19 October 2020

Implementation date: 1 June 2021

Document number: No.55 Chinese President Order

The revised law mainly deals with the following matters.

I.Increase of the cost of infringement, making infringers pay high prices

The revised law creates rules on punitive damages, under which in serious cases of patent right infringement, the court can decide the amount of damages at one to five times an amount calculated on the basis of patent holder’s loss, infringer’s benefits and times the patent license fee. In addition, it increases the upper limit of statutory damages to RMB 5 million and their lower limit to RMB 30 thousand. To solve evidence collection problems in patent cases, the revised patent law further improves evidence rules and provides that if the patent holder has make greatest possible efforts to collect evidence and most of books and materials connected with infringement are controlled by the infringer, the court can order the infringer to present such books and materials and reduce the patent holder’s burden of proof.

II.Application of patents to practical uses and awakening of “sleeping” patents

The revised patent law creates rules on employer’s legal rights in job related inventions and the state policy of encouraging organizations with patent rights to implement ownership incentive plans, motivates creation of inventions and their practical uses and clarifies duties of patent administrations of the state council in charge of construction of the system of public services on patent information, including provision of basic patent data and duties of local patent administrations to improve public services on patents and help implementation and uses of patents.

III.Activation of the creative abilityof the medical industry to better protect people’s lives and health

The revised patent law includes new provisions relating to extension of the term of a drug patent, under which the term of a patent right in an invention on a new drug approved for commercial launch in China should be extended at the patent holder’s request for the period of time taken to examine and approve its commercial launch, provided that the term of patent rights should not be extended for more than five years or to more than fourteen years after grant of approval. .

(Source: Xinhua News)  

2.Minors Protection Law of the People’s Republic of China (Revised)

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

Promulgation date: 19 October 2020

Implementation date: 1 January 2021

Document number: No.57 President Order of China

The revised law is admired for the following provisions.

  1. Schools should establish rules against student abuses.
  2. A compulsory reporting system against non-adult right infringement should be established.
  3. Schools should timely report sex abuses and harassment involving minors.
  4. Improvements to minors check-in procedures of hotels.
  5. Families should protect children better. Custodian’s duties clearly set out.
  6. Improvements to left-behind children care authorization rules
  7. Chinese custodian rules clearly set out as a bottom line for minors protection

(Source: Xinhua News)

3.Export Control Law of China

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

Promulgation date: 19 October 2020

Implementation date: 1 December 2020

Document number: No.58 Chinese President Order

The Export Control Law consists of five chapters, general principles, control policies, lists and measures, supervision, legal liabilities and supplementary rules. Main provisions in it are the scope of export control, list of items under export control, temporary and comprehensive control, exporter’s qualifications and export permit rules, end users and ultimate purposes, extraterritorial application and counter-measures.

Export control means bans or restrictions on exporting specific items to control persons or purposes of using such items. It is a worldwide common practice of performing the international obligation of non-proliferation. (Source: Xinhua News)

4.Personal Data Protection Law of China (Draft)

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

Promulgation date: 21 December 2020

The draft mainly deals with the application scope, personal information processing rules, cross-border personal information provision rules, individuals’ rights and processors’ obligations in activities of processing personal information, departments whose duties include protecting personal information. The draft establishes a series of personal information processing rules based on “notice-consent”, requiring a full advance notice to and a revocable consent from the person whose personal information will be processed, a new consent from such person in case of change of important matters, no failure to obtain consent of such person be a reason for not providing products or services and sets out other circumstances where a person’s data can be legally processed without the person’s consent. (Source: Website of NPC)

5.Administrative Penalty Law of China (Revised Draft)

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

Promulgation date: 21 October 2020                         

The 22nd meeting of the Standing Committee of the 13th National People’s Congress deliberated and published the full text of the Administrative Penalty Law of the People’s Republic of China (Second revised draft for deliberation).

Article 9 of the second draft sets out and amends six types of administrative penalty to include “order to close” as a new type of administrative penalty and remove three types of administrative penalty, “no filing requests for administrative permit”, “order to stop doing a particular thing” and “order to do a particular thing”. Another new provision thereof is that “departments of the state council and governments of provinces, autonomous regions and cities at provincial level and their departments concerned should regularly evaluate the administration and necessity of administrative penalties and put forward proposals to amend or abolish inappropriate penalties”. It also includes provisions relating to administrative penalties supplemental to local regulations, various ways to administer law, improvement of administrative penalty procedures, etc. (Source: Website of NPC)

6.Instructions on Legally Dealing with Criminal Cases of “Pengci”

Promulgated by the Supreme People’s Court, Supreme People’s Procuratorate and Ministry of Public Security

Promulgation date: 14 October 2020

Document number: G.T.Z.(2020) No.12   

Main parts of the Instructions are provisions relating to the process of deciding the nature of “Pengci”, duties of police, public prosecution and judicial authorities, publicity and education, etc. Based on experience accumulated in real cases, the Instructions sets out the process of deciding the nature of common forms of “Pengci” such as fraud and blackmail and criminal acts deriving from “Pengci”, including robbery, grab, theft, vandalism and unlawful confinement and searches in the act of Pengci. It also clarifies the nature of acts of “Pengci” that threaten others’ personal safety and in other circumstances. For example, a person performing “Pengci”, causing death or injuries on purpose or by accident should be convicted of murder, intentional assault, manslaughter or negligence resulting in serious injury as the case may be.. (Source: Website of the Supreme People’s Court)


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