Bridge IP Law Commentary

Advertisements Law of the People‘s Republic of China

Adopted at the 10th session of the standing committee of the Eighth National People‘s Congress on October 27， 1994， promulgated by Order No. 34 of the President of the People’s Republic of China on October 27， 1994， and effective as of February 1， 1995.

Chapter I General Provisions

Article 1 This law is formulated to regulate advertising activities， to promote the sound development of the advertising sector， to protect the lawful rights and interests of consumers， to maintain the social and economic order， and to let advertisements play an active role in socialist market economy.

GENERAL PRINCIPLES OF THE CIVIL LAW OF THE PEOPLE S REPUBLIC OF CHINA
　　(Adopted on April 12, 1986)

Chapter I Basic Principles
Article 1 This Law is formulated in accordance with the Constitution and the actual situation in our country, drawing upon our practical experience in civil activities, for the purpose of protecting the lawful civil rights and interests of citizens and legal persons and correctly adjusting civil relations, so as to meet the needs of the developing socialist modernization.
Article 2 The Civil Law of the People s Republic of China shall adjust property relationships and personal relationships between civil subjects with equal status, that is, between citizens, between legal persons and between citizens and legal persons.
Article 3 Parties to a civil activity shall have equal status.
Article 4 In civil activities, the principles of voluntariness, fairness, making compensation for equal value, honesty and credibility shall be observed.
Article 5 The lawful civil rights and interests of citizens and legal persons shall be protected by law; no organization or individual may infringe upon them.
Article 6 Civil activities must be in compliance with the law; where there are no relevant provisions in the law, they shall be in compliance with state policies.
Article 7 Civil activities shall have respect for social ethics and shall not harm the public interest, undermine state economic plans or disrupt social economic order.
Article 8 The law of the People s Republic of China shall apply to civil activities within the People s Republic of China, except as otherwise stipulated by law.
The stipulations of this Law as regards citizens shall apply to foreigners and stateless persons within the People s Republic of China, except as otherwise stipulated by law.
Chapter II Citizen (Natural Person)
Section 1 Capacity for Civil Rights and Capacity for Civil Conduct.
Article 9 A citizen shall have the capacity for civil rights from birth to death and shall enjoy civil rights and assume civil obligations in accordance with the law.
Article 10 All citizens are equal as regards their capacity for civil rights.
Article 11 A citizen aged 18 or over shall be an adult. He shall have full capacity for civil conduct, may independently engage in civil activities and shall be called a person with full capacity for civil conduct.
A citizen who has reached the age of 16 but not the age of 18 and whose main source of income is his own labour shall be regarded as a person with full capacity for civil conduct.
Article 12 A minor aged 10 or over shall be a person with limited capacity for civil conduct and may engage in civil activities appropriate to his age and intellect; in other civil activities, he shall be represented by his agentad litem or participate with the consent of his agent ad litem.
A minor under the age of 10 shall be a person having no capacity for civil conduct and shall be represented in civil activities by his agent ad litem.
Article 13 A mentally ill person who is unable to account for his own conduct shall be a person having no capacity for civil conduct and shall be represented in civil activities by his agent ad litem.
A mentally ill person who is unable to fully account for his own conduct shall be a person with limited capacity for civil conduct and may engage in civil activities appropriate to his mental health; in other civil activities, he shall be represented by his agent ad litem or participate with the consent of his agent ad litem.
Article 14 The guardian of a person without or with limited capacity for civil conduct shall be his agent all item.
Article 15 The domicile of a citizen shall be the place where his residence is registered; if his habitual residence is not the same as his domicile, his habitual residence shall be regarded as his domicile.
Section 2 Guardianship
Article 16 The parents of a minor shall be his guardians.
If the parents of a minor are dead or lack the competence to be his guardian, a person from the following categories who has the competence to be a guardian shall act as his guardian:
(1) paternal or maternal grandparent;
(2) elder brother or sister; or
(3) any other closely connected relative or friend willing to bear the responsibility of guardianship and having approval from the units of the minor s parents or from the neighbourhood or village committee in the place of the minor s residence. In case of a dispute over guardianship, the units of the minor s parents or the neighbourhood or village committee in the place of his residence shall appoint a guardian from among the minor s near relatives. If disagreement over the appointment leads to a lawsuit, the people s court shall make a ruling.
If none of the persons listed in the first two paragraphs of this article is available to be the guardian, the units of the minor s parents, the neighbourhood or village committee in the place of the minor s residence or the civil affairs department shall act as his guardian.
Article 17 A person from the following categories shall act as guardian for a mentally ill person without or with limited capacity for civil conduct:
(1) spouse;
(2) parent;
(3) adult child;
(4) any other near relative;
(5) any other closely connected relative or friend willing to bear the responsibility of guardianship and having approval from the unit to which the mentally ill person belongs or from the neighbourhood or village committee in the place of his residence. In case of a dispute over guardianship, the unit to which the mentally ill person belongs or the neighbourhood or village committee in the place of his residence shall appoint a guardian from among his near relatives. If disagreement over the appointment leads to a lawsuit, the people s court shall make a ruling. If none of the persons listed in the first paragraph of this article is available to be the guardian, the unit to which the mentally ill person belongs, the neighbourhood or village committee in the place of his residence or the civil affairs department shall act as his guardian.
Article 18 A guardian shall fulfil his duty of guardianship and protect the person, property and other lawful rights and interests of his ward. A guardian shall not handle the property of his ward unless it is in the ward s interests.
A guardian s rights to fulfil his guardianship in accordance with the law shall be protected by law.
If a guardian does not fulfil his duties as guardian or infringes upon the lawful rights and interests of his ward, he shall be held responsible; if a guardian causes any property loss for his ward, he shall compensate for such loss. The people s court may disqualify a guardian based on the application of a concerned party or unit.
Article 19 A person who shares interests with a mental patient may apply to a people s court for a declaration that the mental patient is a person without or with limited capacity for civil conduct.
With the recovery of the health of a person who has been declared by a people s court to be without or with limited capacity for civil conduct, and upon his own application or that of an interested person, the people s court may declare him to be a person with limited or full capacity for civil conduct.
Section 3 Declarations of Missing Persons and Death
Article 20 If a citizen s whereabouts have been unknown for two years, an interested person may apply to a people s court for a declaration of the citizen s missing.
If a person s whereabouts become unknown during a war, the calculation of the time period in which his whereabouts are unknown shall begin on the final day of the war.
Article 21 A missing person s property shall be placed in the custody of his spouse, parents, adult children or other closely connected relatives or friends.
In case of a dispute over custody, if the persons stipulated above are unavailable or are incapable of taking such custody, the property shall be placed in the custody of a person appointed by the people s court. Any taxes, debts and other unpaid expenses owed by a missing person shall defrayed by the custodian out of the missing person s property.
Article 22 In the event that a person who has been declared missing reappears or his whereabouts are ascertained, the people s court shall, upon his own application or that of an interested person, revoke the declaration of his missing-person status.
Article 23 Under either of the following circumstances, an interested person may apply to the people s court for a declaration of a citizen s death:
(1) if the citizen s whereabouts have been unknown for four years or
(2) if the citizen s whereabouts have been unknown for two years after the date of an accident in which he was involved.
If a person s whereabouts become unknown during a war, the calculation of the time period in which his whereabouts are unknown shall begin on the final day of the war.
Article 24 In the event that a person who has been declared dead reappears or it is ascertained that he is alive, the people s court shall, upon his own application or that of an interested person, revoke the declaration of his death.
Any civil juristic acts performed by a person with capacity for civil conduct during the period in which he has been declared dead shall be valid.
Article 25 A person shall have the right to request the return of his property, if the declaration of his death has been revoked. Any citizen or organization that has obtained such property in accordance with the Law of Succession shall return the original items or make appropriate compensation if the original items no longer exist.
Section 4 Individual Businesses and Lease holding Farm Households
Article 26 “Individual businesses” refers to business run by individual citizens who have been lawfully registered and approved to engage in industrial or commercial operation within the sphere permitted by law. An individual business may adopt a shop name.
Article 27 “Lease holding farm households” refers to members of a rural collective economic organization who engage in commodity production under a contract and within the spheres permitted by law.
Article 28 The legitimate rights and interests of individual businesses and lease holding farm households shall be protected by law.
Article 29 The debts of an individual business or a lease holding farm household shall be secured with the individual s property if the business is operated by an individual and with the family s property if the business is operated by a family. Section 5 Individual Partnership
Article 30 “Individual partnership” refers to two or more citizens associated in a business and working together, with each providing funds, material objects, techniques and so on according to an agreement.
Article 31 Partners shall make a written agreement covering the funds each is to provide, the distribution of profits, the responsibility for debts, the entering into and withdrawal from partnership, the ending of partnership and other such matters.
Article 32 The property provided by the partners shall be under their unified management and use. The property accumulated in a partnership operation shall belong to all the partners.
Article 33 An individual partnership may adopt a shop name; it shall be approved and registered in accordance with the law and conduct business operations within the range as approved and registered.
Article 34 The operational activities of an individual partnership shall be decided jointly by the partners, who each shall have the right to carry out and supervise those activities. The partners may elect a responsible person. All partners shall bear civil liability for the operational activities of the responsible person and other personnel.
Article 35 A partnership s debts shall be secured with the partners property in proportion to their respective contributions to the investment or according to the agreement made. Partners shall undertake joint liability for their partnership s debts, except as otherwise stipulated by law. Any partner who overpays his share of the partnership s debts shall have the right to claim compensation from the other partners.
Chapter III Legal Persons
Section 1 General Stipulations
Article 36 A legal person shall be an organization that has capacity for civil rights and capacity for civil conduct and independently enjoys civil rights and assumes civil obligations in accordance with the law.
A legal person s capacity for civil rights and capacity for civil conduct shall begin when the legal person is established and shall end when the legal person terminates.
Article 37 A legal person shall have the following qualifications:
(1) establishment in accordance with the law;
(2) possession of the necessary property or funds;
(3) possession of its own name, organization and premises; and
(4) ability to independently bear civil liability.
Article 38 In accordance with the law or the articles of association of the legal person, the responsible person who acts on behalf of the legal person in exercising its functions and powers shall be its legal representative.
Article 39 A legal person s domicile shall be the place where its main administrative office is located.
Article 40 When a legal person terminates, it shall go into liquidation in accordance with the law and discontinue all other activities.
Section 2 Enterprise as Legal Person
Article 41 An enterprise owned by the whole people or under collective ownership shall be qualified as a legal person when it has sufficient funds as stipulated by the state; has articles of association, an organization and premises; has the ability to independently bear civil liability; and has been approved and registered by the competent authority. A Chinese-foreign equity joint venture, Chinese-foreign contractual joint venture or foreign-capital enterprise established within the People s Republic of China shall be qualified as a legal person in China if it has the qualifications of a legal person and has been approved and registered by the administrative agency for industry and commerce in according with the law.
Article 42 An enterprise as legal person shall conduct operations within the range approved and registered.
Article 43 An enterprise as legal person shall bear civil liability for the operational activities of its legal representatives and other personnel.
Article 44 If an enterprise as legal person is divided or merged or undergoes any other important change, it shall register the change with the registration authority and publicly announce it.
When an enterprise as legal person is divided or merged, its rights and obligations shall be enjoyed and assumed by the new legal person that results from the change.
Article 45 An enterprise as legal person shall terminate for any of the following reasons:
(1) if it is dissolved by law;
(2) if it is disbanded;
(3) if it is declared bankrupt in accordance with the law; or
(4) for other reasons.
Article 46 When an enterprise as legal person terminates, it shall cancel its registration with the registration authority and publicly announce the termination.
Article 47 When an enterprise as legal person is disbanded, it shall establish a liquidation organization and go into liquidation. When an enterprise as legal person is dissolved or is declared bankrupt, the competent authority or a people s court shall organize the organs and personnel concerned to establish a liquidation organization to liquidate the enterprise.
Article 48 An enterprise owned by the whole people, as legal person, shall bear civil liability with the property that the state authorizes it to manage. An enterprise under collective ownership, as legal person, shall bear civil liability with the property it owns. A Chinese-foreign equity joint venture, Chinese-foreign contractual joint venture or foreign-capital enterprise as legal person shall bear civil liability with the property it owns, except as stipulated otherwise by law.
Article 49 Under any of the following circumstances, an enterprise as legal person shall bear liability, its legal representative may additionally be given administrative sanctions and fined and, if the offence constitutes a crime, criminal responsibility shall be investigated in accordance with the law:
(1) conducting illegal operations beyond the range approved and registered by the registration authority;
(2) concealing facts from the registration and tax authorities and practising fraud;
(3) secretly withdrawing funds or hiding property to evade repayment of debts;
(4) disposing of property without authorization after the enterprise is dissolved, disbanded or declared bankrupt;
(5) failing to apply for registration and make a public announcement promptly when the enterprise undergoes a change or terminates, thus causing interested persons to suffer heavy losses;
(6) engaging in other activities prohibited by law, damaging the interests of the state or the public interest.
Section 3 Official Organ, Institution and Social Organization as Legal Person
Article 50 An independently funded official organ shall be qualified as a legal person on the day it is established.
If according to law an institution or social organization having the qualifications of a legal person needs not go through the procedures for registering as a legal person, it shall be qualified as a legal person on the day it is established; if according to law it does need to go through the registration procedures, it shall be qualified as a legal person after being approved and registered.
Section 4 Economic Association
Article 51 If a new economic entity is formed by enterprises or an enterprise and an institution that engage in economic association and it independently bears civil liability and has the qualifications of a legal person, the new entity shall be qualified as a legal person after being approved and registered by the competent authority.
Article 52 If the enterprises or an enterprise and an institution that engage in economic association conduct joint operation but do not have the qualifications of a legal person, each party to the association shall, in proportion to its respective contribution to the investment or according to the agreement made, bear civil liability with the property each party owns or manages. If joint liability is specified by law or by agreement, the parties shall assume joint liability.
Article 53 If the contract for economic association of enterprises or of an enterprise and an institution specifies that each party shall conduct operations independently, it shall stipulate the rights and obligations of each party, and each party shall bear civil liability separately.
Chapter IV Civil Juristic Acts and Agency
Section 1 Civil Juristic Acts
Article 54 A civil juristic act shall be the lawful act of a citizen or legal person to establish, change or terminate civil rights and obligations.
Article 55 A civil juristic act shall meet the following requirements:
(1) the actor has relevant capacity for civil conduct;
(2) the intention expressed is genuine; and
(3) the act does not violate the law or the public interest.
Article 56 A civil juristic act may be in written, oral or other form. If the law stipulates that a particular form be adopted, such stipulation shall be observed.
Article 57 A civil juristic act shall be legally binding once it is instituted. The actor shall not alter or rescind his act except in accordance with the law or with the other party s consent.
Article 58 Civil acts in the following categories shall be null and void:
(1) those performed by a person without capacity for civil conduct;
(2) those that according to law may not be independently performed by a person with limited capacity for civil conduct;
(3) those performed by a person against his true intentions as a result of cheating, coercion or exploitation of his unfavorable position by the other party;
(4) those that performed through malicious collusion are detrimental to the interest of the state, a collective or a third party;
(5) those that violate the law or the public interest;
(6) economic contracts that violate the state s mandatory plans; and
(7) those that performed under the guise of legitimate acts conceal illegitimate purposes. Civil acts that are null and void shall not be legally binding from the very beginning.
Article 59 A party shall have the right to request a people s court or an reiteration agency to alter or rescind the following civil acts:
(1) those performed by an actor who seriously misunderstood the contents of the acts;
(2) those that are obviously unfair.
Rescinded civil acts shall be null and void from the very beginning.
Article 60 If part of a civil act is null and void, it shall not affect the validity of other parts.
Article 61 After a civil act has been determined to be null and void or has been rescinded, the party who acquired property as a result of the act shall return it to the party who suffered a loss. The erring party shall compensate the other party for the losses it suffered as a result of the act; if both sides are in error, they shall each bear their proper share of the responsibility.
If the two sides have conspired maliciously and performed a civil act that is detrimental to the interests of the state, a collective or a third party, the property that they thus obtained shall be recovered and turned over to the state or the collective, or returned to the third party.
Article 62 A civil juristic act may have conditions attached to it. Conditional civil juristic acts shall take effect when the relevant conditions are met.
Section 2 Agency
Article 63 Citizens and legal persons may perform civil juristic acts through agents an agent shall perform civil juristic acts in the principal s name within the scope of the power of agency. The principal shall bear civil liability for the agent s acts of agency. Civil juristic acts that should be performed by the principal himself, pursuant to legal provisions or the agreement between the two parties, shall not be entrusted to an agent.
Article 64 Agency shall include entrusted agency, statutory agency and appointed agency. An entrusted agent shall exercise the power of agency as entrusted by the principal; a statutory agent shall exercise the power of agency as prescribed by law; and an appointed agent shall exercise the power of agency as designated by a people s court or the appointing unit.
Article 65 A civil juristic act may be entrusted to an agent in writing or orally. If legal provisions require the entrustment to be written, it shall be effected in writing. Where the entrustment of agency is in writing, the power of attorney shall clearly state the agent s name, the entrusted tasks and the scope and duration of the power of agency, and it shall be signed or sealed by the principal.
If the power of attorney is not clear as to the authority conferred, the principal shall bear civil liability towards the third party, and the agent shall be held jointly liable.
Article 66 The principal shall bear civil liability for an act performed by an actor with no power of agency, beyond the scope of his power of agency or after his power of agency has expired, only if he recognizes the act retroactively. If the act is not so recognized, the performer shall bear civil liability for it. If a principal is aware that a civil act is being executed in his name but fails to repudiate it, his consent shall be deemed to have been given.
An agent shall bear civil liability if he fails to perform his duties and thus causes damage to the principal.
If an agent and a third party in collusion harm the principal s interests, the agent and the third party shall be held jointly liable.
If a third party is aware that an actor has no power of agency, is overstepping his power of agency, or his power of agency has expired and yet joins him in a civil act and thus brings damage to other people, the third party and the actor shall be held jointly liable.
Article 67 If an agent is aware that the matters entrusted are illegal but still carries them out, or if a principal is aware that his agent s acts are illegal but fails to object to them, the principal and the agent shall be held jointly liable.
Article 68 If in the principal s interests an entrusted agent needs to transfer the agency to another person, he shall first obtain the principal s consent.
If the principal s consent is not obtained in advance, the matter shall be reported to him promptly after the transfer, and if the principal objects, the agent shall bear civil liability for the acts of the transferee; however, an entrusted agency transferred in emergency circumstances in order to safeguard the principal s interests shall be excepted.
Article 69 An entrusted agency shall end under any of the following circumstances:
(1) when the period of agency expires or when the tasks entrusted are completed;
(2) when the principal rescinds the entrustment or the agent declines the entrustment;
(3) when the agent dies;
(4) when the principal loses his capacity for civil conduct; or
(5) when the principal or the agent ceases to be a legal person.
Article 70 A statutory or appointed agency shall end under any of the following circumstances:
(1) when the principal gains or recovers capacity for civil conduct;
(2) when the principal or the agent dies;
(3) when the agent loses capacity for civil conduct;
(4) when the people s court or the unit that appointed the agent rescinds the appointment; or
(5) when the guardian relationship between the principal and the agent ends for other reasons.
Chapter V Civil Rights
Section 1 Property Ownership and Related Property Rights
Article 71 “Property ownership” means the owner s rights to lawfully possess, utilize, profit from and dispose of his property.
Article 72 Property ownership shall not be obtained in violation of the law. Unless the law stipulates otherwise or the parties concerned have agreed on other arrangements, the ownership of property obtained by contract or by other lawful means shall be transferred simultaneously with the property itself.
Article 73 State property shall be owned by the whole people. State property is sacred and inviolable, and no organization or individual shall be allowed to seize, encroach upon, privately divide, retain or destroy it.
Article 74 Property of collective organizations of the working masses shall be owned collectively by the working masses. This shall include:
(1) land, forests, mountains, grasslands, unreclaimed land, beaches and other areas that are stipulated by law to be under collective ownership;
(2) property of collective economic organizations;
(3) collectively owned buildings, reservoirs, farm irrigation facilities and educational, scientific, cultural, health, sports and other facilities; and
(4) other property that is collectively owned. Collectively owned land shall be owned collectively by the village peasants in accordance with the law and shall be worked and managed by village agricultural production cooperatives, other collective agricultural economic organizations or villages committees. Land already under the ownership of the township (town) peasants collective economic organizations may be collectively owned by the peasants of the township(town). Collectively owned property shall be protected by law, and no organization or individual may seize, encroach upon, privately divide, destroy or illegally seal up, distrain, freeze or confiscate it.
Article 75 A citizen s personal property shall include his lawfully earned income, housing, savings, articles for daily use, objects d art, books, reference materials, trees, livestock, as well as means of production the law permits a citizen to possess and other lawful property. A citizen s lawful property shall be protected by law, and no organization or individual may appropriate, encroach upon, destroy or illegally seal up, distrain, freeze or confiscate it.
Article 76 Citizens shall have the right of inheritance under the law.
Article 77 The lawful property of social organizations, including religious organizations, shall be protected by law.
Article 78 Property may be owned jointly by two or more citizens or legal persons.
There shall be two kinds of joint ownership, namely co-ownership by shares and common ownership. Each of the co-owners by shares shall enjoy the rights and assume the obligations respecting the joint property in proportion to his share. Each of the common owners shall enjoy the rights and assume the obligations respecting the joint property. Each co-owner by shares shall have the right to withdraw his own share of the joint property or transfer its ownership. However, when he offers to sell his share, the other co-owners shall have a right of preemption if all other conditions are equal.
Article 79 If the owner of a buried or concealed object is unknown, the object shall belong to the state. The unit that receives the object shall commend or give a material reward to the unit or individual that turns in the object.
Lost-and-found objects, flotsam and stray animals shall be returned to their rightful owners, and any costs thus incurred shall be reimbursed by the owners.
Article 80 State-owned land may be used according to law by units under ownership by the whole people; it may also be lawfully assigned for use by units under collective ownership. The state shall protect the usufruct of the land, and the usufructuary shall be obligated to manage, protect and properly use the land.
The right of citizens and collectives to contract for management of land under collective ownership or of state-owned land under collective use shall be protected by law. The rights and obligations of the two contracting parties shall be stipulated in the contract signed in accordance with the law.
Land may not be sold, leased, mortgaged or illegally transferred by any other means.
Article 81 State-owned forests, mountains, grasslands, unreclaimed land, beaches, water surfaces and other natural resources may be used according to law by units under ownership by the whole people; or they may also be lawfully assigned for use by units under collective ownership. The state shall protect the usufruct of those resources, and the usufructuary shall be obliged to manage, protect and properly use them.
State-owned mineral resources may be mined according to law by units under ownership by the whole people and units under collective ownership; citizens may also lawfully mine such resources. The state shall protect lawful mining rights.
The right of citizens and collectives to lawfully contract for the management of forests, mountains, grasslands, unreclaimed land, beaches and water surfaces that are owned by collectives or owned by the state but used by collectives shall be protected by law. The rights and obligations of the two contracting parties shall be stipulated in the contract in accordance with the law.
State-owned mineral resources and waters as well as forest land, mountains, grasslands, unreclaimed land and beaches owned by the state and those that are lawfully owned by collectives may not be sold, leased, mortgaged or illegally transferred by any other means.
Article 82 Enterprises under ownership by the whole people shall lawfully enjoy the rights of management over property that the state has authorized them to manage and operate, and the rights shall be protected by law.
Article 83 In the spirit of helping production, making things convenient for people s lives, enhancing unity and mutual assistance, and being fair and reasonable, neighbouring users of real estate shall maintain proper neighbourly relations over such matters as water supply, drainage, passageway, ventilation and lighting. Anyone who causes obstruction or damage to his neighbour, shall stop the infringement, eliminate the obstruction and compensate for the damage.
Section 2 Creditors Rights
Article 84 A debt represents a special relationship of rights and obligations established between the parties concerned, either according to the agreed terms of a contract or legal provisions. The party entitled to the rights shall be the creditor, and the party assuming the obligations shall be the debtor.
The creditor shall have the right to demand that the debtor fulfil his obligations as specified by the contract or according to legal provisions.
Article 85 A contract shall be an agreement whereby the parties establish, change or terminate their civil relationship. Lawfully established contracts shall be protected by law.
Article 86 When there are two or more creditors to a deal, each creditor shall be entitled to rights in proportion to his proper share of the credit. When there are two or more debtors to a deal, each debtor shall assume obligations in proportion to his share of the debt.
Article 87 When there are two or more creditors or debtors to a deal, each of the joint creditors shall be entitled to demand that the debtor fulfil his obligations, in accordance with legal provisions or the agreement between the parties; each of the joint debtors shall be obliged to perform the entire debt, and the debtor who performs the entire debt shall be entitled to ask the other joint debtors to reimburse him for their shares of the debt.
Article 88 The parties to a contract shall fully fulfil their obligations pursuant to the terms of the contract.
If a contract contains ambiguous terms regarding quality, time limit for performance, place of performance, or price, and the intended meaning cannot be determined from the context of relevant terms in the contract, and if the parties cannot reach an agreement through consultation, the provisions below shall apply:
(1) If quality requirements are unclear, state quality standards shall apply; if there are no state quality standards, generally held standards shall apply.
(2) If the time limit for performance is unclear, the debtor may at his convenience fulfill his obligations towards the creditor; the creditor may also demand at any time that the debtor perform his obligations, but sufficient notice shall be given to the debtor.
(3) If the place of performance is unclear, and the payment is money, the performance shall be effected at the seat or place of residence of the party receiving the payment; if the payment is other than money, the performance shall be effected at the seat or place of residence of the party fulfilling the obligations.
(4) If the price agreed by the parties is unclear, the state-fixed price shall apply. If there is no state-fixed price, the price shall be based on market price or the price of a similar article or remuneration for a similar service.
If the contract does not contain an agreed term regarding rights to patent application, any party who has completed an invention-creation shall have the right to apply for a patent.
If the contract does not contain an agreed term regarding rights to patent application, and technological research achievements, the parties shall all have the right to use such achievements.
Article 89 In accordance with legal provisions the agreement between the parties on the performance of a debt may be guaranteed using the methods below:
(1) A guarantor may guarantee to the creditor that the debtor shall perform his debt. If the debtor defaults, the guarantor shall perform the debt or bear joint liability according to agreement. After performing the debt, the guarantor shall have the right to claim repayment from the debtor.
(2) The debtor or a third party may offer a specific property as a pledge. If the debtor defaults, the creditors shall be entitled to keep the pledge to offset the debt or have priority in satisfying his claim out of the proceeds from the sale of the pledge pursuant to relevant legal provisions.
(3) Within the limits of relevant legal provisions, a party may leave a deposit with the other party. After the debtor has discharged his debt, the deposit shall either be retained as partial payment of the debt or be returned. If the party who leaves the deposit defaults, he shall not be entitled to demand the return of the deposit; if the party who accepts the deposit defaults, he shall repay the deposit in double.
(4) If a party has possession of the other party s property according to contract and the other party violates the contract by failing to pay a required sum of money within the specified time limit, the possessor shall have a lien on the property and may keep the retained property to offset the debt or have priority in satisfying his claim out of the proceeds from the sale of the property pursuant to relevant legal provisions.
Article 90 Legitimate loan relationships shall be protected by law.
Article 91 If a party to a contract transfers all or part of his contractual rights or obligations to a third party, he shall obtain the other party s consent and may not seek profits therefrom. Contracts which according to legal provisions are subject to state approval, such as transfers, must be approved by the authority that originally approved the contract, unless the law or the original contract stipulates otherwise.
Article 92 If profits are acquired improperly and without a lawful basis, resulting in another person s loss, the illegal profits shall be returned to the person who suffered the loss.
Article 93 If a person acts as manager or provides services in order to protect another person s interests when he is not legally or contractually obligated to do so, he shall be entitled to claim from the beneficiary the expenses necessary for such assistance.
Section 3 Intellectual Property Rights
Article 94 Citizens and legal persons shall enjoy rights of authorship (copyrights) and shall be entitled to sign their names as authors, issue and publish their works and obtain remuneration in accordance with the law.
Article 95 The patent rights lawfully obtained by citizens and legal persons shall be protected by law.
Article 96 The rights to exclusive use of trademarks obtained by legal persons, individual businesses and individual partnerships shall be protected by law.
Article 97 Citizens who make discoveries shall be entitled to the rights of discovery. A discoverer shall have the right to apply for and receive certificates of discovery, bonuses or other awards.
Citizens who make inventions or other achievements in scientific and technological research shall have the right to apply for and receive certificates of honour, bonuses or other awards.
Section 4 Personal Rights
Article 98 Citizens shall enjoy the rights of life and health.
Article 99 Citizens shall enjoy the right of personal name and shall be entitled to determine, use or change their personal names in accordance with relevant provisions. Interference with, usurpation of and false representation of personal names shall be prohibited. Legal persons, individual businesses and individual partnerships shall enjoy the right of name. Enterprises as legal persons, individual businesses and individual partnerships shall have the right to use and lawfully assign their own names.
Article 100 Citizens shall enjoy the right of portrait.
The use of a citizen s portrait for profit without his consent shall be prohibited.
Article 101 Citizens and legal persons shall enjoy the right of reputation. The personality of citizens shall be protected by law, and the use of insults, libel or other means to damage the reputation of citizens or legal persons shall be prohibited.
Article 102 Citizens and legal persons shall enjoy the right of honour. It shall be prohibited to unlawfully divest citizens and legal persons of their honorary titles.
Article 103 Citizens shall enjoy the right of marriage by choice. Mercenary marriages, marriages upon arbitrary decision by any third party and any other acts of interference in the freedom of marriage shall be prohibited.
Article 104 Marriage, the family, old people, mothers and children shall be protected by law. The lawful rights and interests of the handicapped shall be protected by law.
Article 105 Women shall enjoy equal civil rights with men.
Chapter VI Civil Liability
Section 1 General Stipulations
Article 106 Citizens and legal persons who breach a contract or fail to fulfil other obligations shall bear civil liability.
Citizens and legal persons who through their fault encroach upon state or collective property or the property or person of other people shall bear civil liability. Civil liability shall still be borne even in the absence of fault, if the law so stipulates.
Article 107 Civil liability shall not be borne for failure to perform a contract or damage to a third party if it is caused by force majeure, except as otherwise provided by law.
Article 108 Debts shall be cleared. If a debtor is unable to repay his debt immediately, he may repay by installments with the consent of the creditor or a ruling by a people s court. If a debtor is capable of repaying his debt but refuses to do so, repayment shall be compelled by the decision of a people s court.
Article 109 If a person suffers damages from preventing or stopping encroachment on state or collective property, or the property or person of a third party, the infringer shall bear responsibility for compensation, and the beneficiary may also give appropriate compensation.
Article 110 Citizens or legal persons who bear civil liability shall also be held for administrative responsibility if necessary. If the acts committed by citizens and legal persons constitute crimes, criminal responsibility of their legal representatives shall be investigated in accordance with the law.
Section 2 Civil Liability for Breach of Contract
Article 111 If a party fails to fulfil its contractual obligations or violates the term of a contract while fulfilling the obligations, the other party shall have the right to demand fulfillment or the taking of remedial measures and claim compensation for its losses.
Article 112 The party that breaches a contract shall be liable for compensation equal to the losses consequently suffered by the other party.
The parties may specify in a contract that if one party breaches the contract it shall pay the other party a certain amount of breach of contract damages; they may also specify in the contract the method of assessing the compensation for any losses resulting from a breach of contract.
Article 113 If both parties breach the contract, each party shall bear its respective civil liability.
Article 114 If one party is suffering losses owing to the other party s breach of contract, it shall take prompt measures to prevent the losses from increasing; if it does not promptly do so, it shall not have the right to claim compensation for the additional losses.
Article 115 A party s right to claim compensation for losses shall not be affected by the alteration or termination of a contract.
Article 116 If a party fails to fulfil its contractual obligations on account of a higher authority, it shall first compensate for the losses of the other party or take other remedial measures as contractually agreed and then the higher authority shall be responsible for settling the losses it sustained.
Section 3 Civil Liability for Infringement of Rights
Article 117 Anyone who encroaches on the property of the state, a collective or another person shall return the property; failing that, he shall reimburse its estimated price. Anyone who damages the property of the state, a collective or another person shall restore the property to its original condition or reimburse its estimated price. If the victim suffers other great losses therefrom, the infringer shall compensate for those losses as well.
Article 118 If the rights of authorship (copyrights), patent rights, rights to exclusive use of trademarks, rights of discovery, rights of invention or rights for scientific and technological research achievements of citizens or legal persons are infringed upon by such means as plagiarism, alteration or imitation, they shall have the right to demand that the infringement be stopped, its ill effects be eliminated and the damages be compensated for.
Article 119 Anyone who infringes upon a citizen s person and causes him Physical injury shall pay his medical expenses and his loss in income due to missed working time and shall pay him living subsidies if he is disabled; if the victim dies, the infringe shall also pay the funeral expenses, the necessary living expenses of the deceased s dependents and other such expenses.
Article 120 If a citizen s right of personal name, portrait, reputation or honour is infringed upon, he shall have the right to demand that the infringement be stopped, his reputation be rehabilitated, the ill effects be eliminated and an apology be made; he may also demand compensation for losses.
The above paragraph shall also apply to infringements upon a legal person s right of name, reputation or honour.
Article 121 If a state organ or its personnel, while executing its duties, encroaches upon the lawful rights and interests of a citizen or legal person and causes damage, it shall bear civil liability.
Article 122 If a substandard product causes property damage or physical injury to others, the manufacturer or seller shall bear civil liability according to law. If the transporter or storekeeper is responsible for the matter, the manufacturer or seller shall have the right to demand compensation for its losses.
Article 123 If any person causes damage to other people by engaging in operations that are greatly hazardous to the surroundings, such as operations conducted high aboveground, or those involving high pressure, high voltage, combustibles, explosives, highly toxic or radioactive substances or high-speed means of transport, he shall bear civil liability; however, if it can be proven that the damage was deliberately caused by the victim, he shall not bear civil liability.
Article 124 Any person who pollutes the environment and causes damage to others in violation of state provisions for environmental protection and the prevention of pollution shall bear civil liability in accordance with the law.
Article 125 Any constructor who engages in excavation, repairs or installation of underground facilities in a public place, on a roadside or in a passageway without setting up clear signs and adopting safety measures and thereby causes damage to others shall bear civil liability.
Article 126 If a building or any other installation or an object placed or hung on a structure collapses, detaches or drops down and causes damage to others, its owner or manager shall bear civil liability, unless he can prove himself not at fault.
Article 127 If a domesticated animal causes harm to any person, its keeper or manager shall bear civil liability. If the harm occurs through the fault of the victim, the keeper or manager shall not bear civil liability; if the harm occurs through the fault of a third party, the third party shall bear civil liability.
Article 128 A person who causes harm in exercising justifiable defence shall not bear civil liability. If justifiable defence exceeds the limits of necessity and undue harm is caused, an appropriate amount of civil liability shall be borne.
Article 129 If harm occurs through emergency actions taken to avoid danger, the person who gave rise to the danger shall bear civil liability. If the danger arose from natural causes, the person who took the emergency actions may either be exempt from civil liability or bear civil liability to an appropriate extent. If the emergency measures taken are improper or exceed the limits of necessity and undue harm is caused, the person who took the emergency action shall bear civil liability to an appropriate extent.
Article 130 If two or more persons jointly infringe upon another person s rights and cause him damage, they shall bear joint liability.
Article 131 If a victim is also at fault for causing the damage, the civil liability of the infringe may be reduced.
Article 132 If none of the parties is at fault in causing damage, they may share civil liability according to the actual circumstances.
Article 133 If a person without or with limited capacity for civil conduct causes damage to others, his guardian shall bear civil liability. If the guardian has done his duty of guardianship, his civil liability may be appropriately reduced.
If a person who has property but is without or with limited capacity for civil conduct causes damage to others, the expenses of compensation shall be paid from his property. Shortfalls in such expenses shall be appropriately compensated for by the guardian unless the guardian is a unit.
Section 4 Methods of Bearing Civil Liability
Article 134 The main methods of bearing civil liability shall be:
(1) cessation of infringements;
(2) removal of obstacles;
(3) elimination of dangers;
(4) return of property;
(5) restoration of original condition;
(6) repair, reworking or replacement;
(7) compensation for losses;
(8) payment of breach of contract damages;
(9) elimination of ill effects and rehabilitation of reputation; and
(10) extension of apology.
The above methods of bearing civil liability may be applied exclusively or concurrently. When hearing civil cases, a people s court, in addition to applying the above stipulations, may serve admonitions, order the offender to sign a pledge of repentance, and confiscate the property used in carrying out illegal activities and the illegal income obtained therefrom.
It may also impose fines or detentions as stipulated by law.
Chapter VII Limitation of Action
Article 135 Except as otherwise stipulated by law, the limitation of action regarding applications to a people s court for protection of civil rights shall be two years.
Article 136 The limitation of action shall be one year in cases concerning the following:
(1) claims for compensation for bodily injuries;
(2) sales of substandard goods without proper notice to that effect;
(3) delays in paying rent or refusal to pay rent; or
(4) loss of or damage to property left in the care of another person.
Article 137 A limitation of action shall begin when the entitled person knows or should know that his rights have been infringed upon. However, the people s court shall not protect his rights if 20 years have passed since the infringement. Under special circumstances, the people s court may extend the limitation of action.
Article 138 If a party chooses to fulfil obligations voluntarily after the limitation of action has expired, he shall not be subject to the limitation.
Article 139 A limitation of action shall be suspended during the last six months of the limitation if the plaintiff cannot exercise his right of claim because of force majeure or other obstacles. The limitation shall resume on the day when the grounds for the suspension are eliminated.
Article 140 A limitation of action shall be discontinued if suit is brought or if one party makes a claim for or agrees to fulfillment of obligations. A new limitation shall be counted from the time of the discontinuance.
Article 141 If the law has other stipulations concerning limitation of action, those stipulations shall apply.
Chapter VIII Application of Law in Civil Relations with Foreigners
Article 142 The application of law in civil relations with foreigners shall be determined by the provisions in this chapter.
If any international treaty concluded or acceded to by the People s Republic of China contains provisions differing from those in the civil laws of the People s Republic of China, the provisions of the international treaty shall apply, unless the provisions are ones on which the People s Republic of China has announced reservations. International practice may be applied to matters for which neither the law of the People s Republic of China nor any international treaty concluded or acceded to by the People s Republic of China has any provisions.
Article 143 If a citizen of the People s Republic of China settles in a foreign country, the law of that country may be applicable as regards his capacity for civil conduct.
Article 144 The ownership of immovable property shall be bound by the law of the place where it is situated.
Article 145 The parties to a contract involving foreign interests may choose the law applicable to settlement of their contractual disputes, except as otherwise stipulated by law. If the parties to a contract involving foreign interests have not made a choice, the law of the country to which the contract is most closely connected shall be applied.
Article 146 The law of the place where an infringing act is committed shall apply in handling compensation claims for any damage caused by the act. If both parties are citizens of the same country or have established domicile in another country, the law of their own country or the country of domicile may be applied.
An act committed outside the People s Republic of China shall not be treated as an infringing act if under the law of the People s Republic of China it is not considered an infringing act.
Article 147 The marriage of a citizen of the People s Republic of China to a foreigner shall be bound by the law of the place where they get married, while a divorce shall be bound by the law of the place where a court accepts the case.
Article 148 Maintenance of a spouse after divorce shall be bound by the law of the country to which the spouse is most closely connected.
Article 149 In the statutory succession of an estate, movable property shall be bound by the law of the decedent s last place of residence, and immovable property shall be bound by the law of the place where the property is situated.
Article 150 The application of foreign laws or international practice in accordance with the provisions of this chapter shall not violate the public interest of the People s Republic of China.
Chapter IX Supplementary provisions
Article 151 The people s congresses of the national autonomous areas may formulate separate adaptive or supplementary regulations or provisions in accordance with the principles of this Law and in light of the characteristics of the local nationalities. Those formulated by the people s congresses of autonomous regions shall be submitted in accordance with the law to the Standing Committee of the National People s Congress for approval or for the record. Those formulated by the people s congresses of autonomous prefectures or autonomous counties shall be submitted to the standing committee of the people s congress in the relevant province or autonomous region for approval.
Article 152 If an enterprise owned by the whole people has been established with the approval of the competent authority of a province, autonomous region or centrally administered municipality or at a higher level and it has already been registered with the administrative agency for industry and commerce, before this Law comes into force, it shall automatically qualify as a legal person without having to re-register as such.
Article 153 For the purpose of this Law, “force majeure” means unforeseeable, unavoidable and insurmountable objective conditions.
Article 154 Time periods referred to in the Civil Law shall be calculated by the Gregorian calendar in years, months, days and hours.
When a time period is prescribed in hours, calculation of the period shall begin on the prescribed hour. When a time period is prescribed in days, months and years, the day on which the period begins shall not be counted as within the period; calculation shall begin on the next day. If the last day of a time period falls on a Sunday or an official holiday, the day after the holiday shall be taken as the last day. The last day shall end at 24:00 hours. If business hours are applicable, the last day shall end at closing time.
Article 155 In this Law, the terms “not less than,” “not more than,” “within” and “expires” shall include the given figure; the terms “under” and “beyond” shall not include the given figure.
Article 156 This Law shall come into force on January 1, 1987.

Chapter I General Provisions

Article 1 For the purposes of confirming the enterprise legal person qualification of companies and regulating the company registration behaviors,the Regulations have been formulated according to the Company Law of the People’s Republic of China (hereinafter referred to as the Company Law).

Article 2 As to the establishment, alteration or termination of limited liability companies and joint stock limited companies (hereinafter referred to as the companies), the registration of the companies should be handled according tothe Regulations.
As to an application for company registration, the applicant shall be responsible for the authenticity of the application documents and materials.

Regulation for Computer Software Protection

Chapter I General Provisions

Chapter II Software Copyright

Chapter III Licensing and Transfer of Software Copyright

Chapter IV Legal Responsibility

Chapter V Supplementary Provisions

Chapter I General Provisions

Article 1 For the purposes of protecting the rights and interests of computer software copyright owners, regulating beneficial relations in the development, dissemination and use of computer software, encouraging the computer software development and application and promoting the advance of the software industry and the information-based national economy, and in accordance with the Copyright Law of the People’s Republic of China, this Regulation is formulated.

Implementing Regulations of the Trademark Law of the People’s Republic of China

(Promulgated by the State Council on 3 August 2002)
Chapter l General Provisions
Article 1 These Implementing Regulations are formulated in accordance with the Trademark Law of the People’s Republic of China (hereinafter referred to as the Trademark Law).
Article 2 The provisions made in these Implementing Regulations concerning goods marks shall apply to service marks.
Article 3 The use of trademarks referred to in the Trademark Law and these Regulations include, among other things, the use of trademarks on goods, Packages or containers thereof and commodity trading instruments, or use of trademarks in advertisements, exhibitions and other commercial activities.
Article 4 Goods required to bear registered trademarks as prescribed by the State mentioned in Article 6 of the Trademark Law refer to goods in respect of which registered trademarks must be used as prescribed by law and administrative regulations.
Article 5 Under the Trademark Law and these Regulations, when an interested party believes his trademark constitutes a well-known trademark when a dispute arises in the course of trademark registration or trademark review and adjudication, he may file a request with the Trademark Office or the Trademark Review and Adjudication Board to establish it as a well-known trademark, to reject the trademark registration application contrary to the provision of Article l3 of the Trademark Law, or to cancel the trademark registration contrary to the provision of Article 13 of the Trademark Law. When filing an application, an interested party shall submit proofs that his trademark constitutes a well-known trademark.
At the request of the interested party, the Trademark Office or the Trademark Review and Adjudication Board shall, on the basis of ascertained facts, establish whether his trademark constitutes a well-known trademark pursuant to the provision of Article 14 of the Trademark Law.
Article 6 Applications may be filed for registration of geographic indications provided for in Article l6 of the Trademark Law as certification marks or collective marks in accordance with the provisions of the Trademark Law and these Regulations.
Where a geographic indication is registered as a certification mark, the natural person, legal person or other organization whose goods has met the requirement imposed on the geographic indications may request for using the certification mark, and the organization having control on the certification mark shall give its permission. Where a geographic indication is registered as a collective mark, the natural person, legal person or other organization whose goods has met the requirement imposed on the geographic indications may request for membership of the body, association or other organization having the geographic indication as its collective mark. The body, association or other organization shall accept him or it as its member according to the articles of constitution thereof. Any person who does not ask to join the body, association or other organization having the geographic indication as its collective mark may also duly use the geographic indication, and the body, association or other organization does not have the right to prohibit the use.
Article 7 An interested party entrusting a trademark agency with the filing of an application for trademark registration or attending to other trademark matters shall submit a Power of Attorney. The Power of Attorney}’ shall indicate such contents and competence as authorized: the Power of Attorney from a foreign person or foreign enterprise shall, in addition, indicate the nationality of the entruster.
Notarization and legalization of the Power of Attorney and other relevant certificates from a foreign person or foreign enterprise’ shall be done based on the principle of reciprocity.
The foreign person or foreign enterprise mentioned in Article l8 of the Trademark Law refers to the foreign person who or foreign enterprise which does not have its habitual residence or place of business in China.
Article 8 The Chinese language shall be used in applying for trademark registration or attending to other trademark matters.
Where the various certificates, certifying documents and proofs submitted under the Trademark Law and these Regulations are in a foreign language, the Chinese translation thereof shall be attached; where the Chinese translation is not attached, the certificates, certifying documents and proofs shall be deemed not to have been submitted.
Article 9 In any one of the following circumstances, any staff member of the Trademark Office and the Trademark Review and Adjudication Board shall withdraw, or a party or interested Part} may request him to withdraw:
(l) he is a party or a close relative to a party or agent;
(2) he is related in such a way with a party or agent insofar as the relation would affect impartiality; or
(3) he has interests in an application for trademark registration or an}’ other trademark matters.
Article l0 Unless otherwise provided for in these Regulations, where any document is sent to the Trademark Office or the Trademark Review and Adjudication Board, the date of receipt shall be the date of delivery where it is delivered personally}. or the date of posting indicated by the postmark if it is sent by post; where the date of posting indicated by the postmark is illegible, or there is no postmark, the date of receipt shall be the date on which the Trademark Office or the Trademark Review and Adjudication Board actually receives the document, except that the interested Part]’ is able to present evidence as to the actual date of posting indicated by the postmark.
Article 11 Any document of the Trademark Office or the Trademark Review and Adjudication Board may be served by post, by personal delivery or by other means. Where an interested party entrusts a trademark agency, delivery of the document to the trademark agency shall be deemed delivery thereof to the interested party.
Where any document is sent to an interested party by the Trademark Office or the Trademark Review and Adjudication Board. the date of receipt shall be the date of receipt indicated b]- the postmark on which the interested party receives it if it is sent by post; where the date of Posting indicated by the postmark is i1legible, or where there is no postmark. the document shal1 be deemed to have been delivered to the interested party on the fifteenth day from the date of posting the document; the date of receipt shall be the date of delivery if it is delivered personally. Where any document cannot be sent by post or by personal delivery, the document may be served b}’ making an announcement. At the expiration of the thirtieth day from the date of the announcement, the document shall be deemed to have been served.
Article 12 Where an application is filed for international registration, it shall be done in accordance with the relevant international treaties to which China has acceded. The specific measures shall be prescribed by the administrative department for industry and commerce under the State Council.
Chapter II Application for Trademark Registration
Article 13 In application for the registration of a trademark, a separate application shall be filed in respect of each class of goods or service according to the published Classification of Goods and Services. For each application for the trademark registration, an Application for Trademark Registration shall be filed with the Trademark Office, accompanied by five copies of the reproduction of the trademark; if colour is claimed, five copies of the colour reproduction of the trademark shall be attached, so shall be a black and white design of the trademark.
The reproduction of the trademark must be clear and easy to paste and shall be printed on smooth and clean durable paper or substituted by a photograph. Its length or breadth shall not be more than l0 cm and less than 5 cm each.
Where an application is filed for the registration of a three-dimensional sign as a trademark, a statement shall be made in the application, and the reproduction capable of defining the three-dimensional formation be submitted.
Where an application is filed for the registration of a combination of colours as a trademark, a statement shall be made in the application, and an explanation thereof be submitted in writing.
Where an application is filed for the registration of a certification mark or collective mark, a statement shall be made in the application, and the certificates of the qualification of the applicant and regulations for the administration of the use thereof be submitted.
Where a trademark is in a foreign language or contains lexical elements in a foreign language, explanation of its meaning shall be made.
Article 14 When filing an application for the registration of a trademark, the applicant shall submit a copy of effective certificate capable of proving his identification. The name of the applicant for trademark registration shall be consistent with the certificate submitted.
Article 15 The goods or services shall be listed in the application according to the Classification of Goods and Services. If the goods or services are not listed in the Classification of Goods and Services, a description of the 5aid goods or services shall be attached.
The documents relating to an application for trademark registration shall be typewritten or printed.
Article 16 If an application is jointly filed for registration of the same trademark, a representative shall be designated in the application; if such representative is not designated, the first person listed in the application shall be the representative.
Article 17 If an applicant changes his name, address, agent, or deletes or reduces designated goods, he may go through the formalities for the change with the Trademark Office.
An applicant who assigns his application for trademark registration shall go through the formalities for the assignment with the Trademark Office.
Article 18 The filing date of an application for trademark registration shal1 be the date on which the Trademark Office receives the application documents.
Where the formal requirements of the application are fulfilled and the application form filled out according to the relevant rules, the Trademark Office will accept the application and notify the applicant in writing. Where the formal requirements are not fulfilled or the application form not filled out according to the relevant rules, the Trademark Office will not accept it, and it shall notify the applicant in writing and explain the reason. Where the formal requirements are basically fulfilled or the application form filled out basica1ly according to the relevant rules, but amendments are required, the Trademark Office shall notify the applicant to make the amendments and require him to do so according to the contents prescribed and re-submit it to the Trademark Office within thirty days from the date on which he receives the notification. Where the application is amended and re-submitted to the Trademark Office within the time limit, the date of filing shall be retained. Where the application is not amended within the time limit, the application shall be deemed to have been abandoned, and the Trademark Office shall notify the applicant in writing.
Article 19 Where two or more applicants respectively apply for the registration of identical or similar trademarks used on the identica1 or similar goods on the same day, each applicant sha1l, within thirty days from the date of receipt of the notification of the Trademark Office, submit a proof of his prior use of the mark in respect of which he has applied for the registration. Where the applicants used the mark for the first time on the same day or where none of them has used the mark, they shall try to resolve the matter through consultation, and submit a written agreement to the Trademark Office within thirty days from the date of receipt of the notification from the Trademark Office; where the applicants are reluctant to resolve the matter through consultation or an agreement is not reached, the Trademark Office shall notify the applicants that one applicant will be singled out by lot, and reject the registration applications filed by the other applicants. Where the Trademark Office notifies an applicant, but the applicant does not show up and draw his lot, his application shall be deemed to have been abandoned, and the Trademark Office shall notify in writing the applicant who has failed to show up.
Article 20 Where an applicant claims the right of priority according to Article 24 of the Trademark Law, the copy of the application document which he first filed for the registration of the trademark shall be certified by the competent trademark authority accepting the application, with the date of filing and the application number indicated.
Where an applicant claims the right of priority according to Article 25 of the Trademark Law, the certification documents submitted by him shall be certified by the administrative department for industry and commerce under the State Council, except that the international exhibition on which the goods are put on display is held inside the territory of China.
Chapter III Examination of Application for Trademark Registration
Article 21 The Trademark Office shall, in accordance with the Trademark Law and these Regulations, examine the applications for the registration of trademark it has accepted. Applications which conform to the relevant provisions, or those for the registration of trademarks in respect of a part of the designated goods which conform to the relevant provisions, shall be preliminarily approved and published. Applications which do not conform to the relevant provisions, or those for the registration of trademarks in respect of a part of the designated goods which do not conform to the relevant provisions, shall be rejected. The Trademark Office shall notify the applicant in writing and explain the reason for the rejection.
Where the Trademark Office has preliminarily approved applications for the registration of trademarks on a part of the designated goods, the applicant may apply for the abandonment thereof before the date of expiration of the opposition period; where the applicant abandons the registration of trademarks in respect of a part of the designated goods, the Trademark Office shall withdraw the preliminary approval, terminate the examination procedure, and republish it.
Article 22 Where an opposition is filed to a trademark which, after examination, has been preliminarily approved and published by the Trademark Office, the opponent shall submit the Application for Trademark Opposition in duplicate to the Trademark Office. The Application for Trademark Opposition shall indicate the issue number of the Trademark Gazette on which the opposed trademark is published, and the number of preliminary approval of the opposed trademark. The Application for Trademark Opposition shall contain the specific requests and facts and grounds, with relevant proofs and certificates attached.
The Trademark Office shall send a copy of the Application for Trademark Opposition to the opposed party and require him to make a reply within thirty days from the date of his receipt of the copy. His failure to make a rep1y shall not affect the adjudication by the Trademark Office on the opposition.
Where an interested party needs to supplement relevant proofs and certificates after he raises an opposition application or makes a reply, he shall make a statement in the application or reply, and submit the proofs and certificates within three months from the date of submission of the application or rep1y; where he fails to submit them at the expiration of the time limit, the interested party shall be deemed to have abandoned supplementing the relevant proofs and certificates.
Article 23 The justification of the opposition mentioned in Article 34, paragraph two, of the Trademark Law shall include the justification of the opposition to a registration in respect of a part of the designated goods. Where such opposition is justified, the application for the registration of trademarks in respect of that part of the designated goods shall not be approved.
Where an opposed trademark has, prior to the coming into effect of the adjudication on the opposition, been announced as a registered trademark in the Trademark Gazette, the registration announcement shall be cancelled. The trademark that has been approved for registration upon the adjudication on the opposition sha1l be re-published.
The trademark approved for registration upon the adjudication on the opposition shall not have the retroactive effect on another person’s act to use a sign identical with or similarly to the trademark on the same or similar goods from the date on which the period for trademark opposition expires and before the adjudication on the opposition takes effect; however, the losses inflicted to the trademark registrant due to the bad faith in which the sign is used shall be compensated.
The time limit for the application for review and adjudication of the trademark approved for registration upon the adjudication on the opposition shall be calculated from the date of publication of the adjudication on the trademark opposition.
Chapter IV Modification, Assignment and Renewal of Registered Trademarks
Article 24 When applying for modification of his name, address or other registration matters, the registrant shall file an Application for Modification with the Trademark Office. The Trademark Office shall, upon examination and approval, issue the trademark registrant the relevant certificates, and make an announcement. Where the application is not approved, the Trademark Office shall notify the applicant in writing and explain the reason.
When applying for modification of his name, the registrant shall submit modification certificate issued by the relevant registry. An applicant who has not submitted the modification certificate may do so within thirty days from the date of filing the application. Where the submission is not made within the time limit, the application for the modification shall be deemed to have been abandoned, and the Trademark Office shall notify the applicant in writing.
When applying for modification of his name and address, the trademark registrant shall make the modifications in all his registered trademarks. If he fails to do so, the application for the modification shall be deemed to have been abandoned, and the Trademark Office shall notify the applicant in writing.
Article 25 When applying for the assignment of a registered trademark, the assignor and assignee shall file with the Trademark Office an Application for Assignment of Registered Trademark. The formalities of applying for the assignment of the registered trademark shall be gone through by the assignee. The Trademark Office, upon examination and approval of the application. shall issue the relevant certificate to the assignee and make an announcement.
When applying for the assignment of a registered trademark, the trademark registrant shall assign all the identical or similar trademarks registered in respect of the same or similar goods. If the registrant fails to do so, the Trademark Office shal1 notify him to correct the situation within a time limit; if the correction is not made within the time limit, the application for the assignment of the registered trademark shall be deemed to have been abandoned, and the Trademark Office shall notify the applicant in writing.
Any application for the assignment of a registered trademark that may mislead the public or cause confusion or exert any other adverse effects shall not be approved by the Trademark Office. the Trademark Office shall notify the applicant in writing and explain the reason.
Article 26 If the exclusive right to use a registered trademark is transferred for reasons other than assignment, the party receiving the transferred exclusive right to use the registered trademark shall go to the Trademark Office with relevant certificates or legal instruments to go through the formalities for the transfer of the exclusive right to use the registered trademark.
When applying for a transfer of the exclusive right to use a registered trademark, the exclusive right holder of the registered trademark shall transfer all the other identical or similar trademarks registered in respect of the same or similar goods. If the exclusive right holder fails to do so, the Trademark Office shall notify him to correct the situation within a time limit; if the correction is not made within the time limit, the application for the assignment of the registered trademark shall be deemed to have been abandoned, and the Trademark Office shall notify the applicant in writing.
Article 27 When applying for the renewal of a trademark registration, the applicant shall file with the Trademark Office an App1ication for Renewal of Trademark Registration. After examination and approval of the application for the renewal of a trademark registration, the Trademark Office shall issue the relevant certificate and announce it.
The period of validity of a renewed trademark shall be calculated from the day after the expiration of the previous period of validity of the said trademark.
Chapter V Trademark Review and Adjudication
Article 28 The Trademark Review and Adjudication Board shall accept applications for trademark review and adjudication filed according to the provisions of Articles 32, 33, 4l and 49 of the Trademark Law, and conduct, according to law, the review and adjudication on the basis of facts.
Article 29 By having dispute over a registered trademark mentioned in Article 4l, paragraph three, of the Trademark Law shall be meant that a registrant of a trademark in respect of which a prior application is filed for registration thereof alleges that a trademark in respect of which another person subsequently files an application for its registration is identical with or similar to his trademark registered in respect of the identical or similar goods.
Article 30 When applying for the trademark review and adjudication, the applicant shall file an application with the Trademark Review and Adjudication Board, and submit the same number of copies thereof as that of the other parties; when filing the application for reexamination based on the Decision or Adjudication made by the Trademark Office, the applicant shall meantime submit a copy of the Decision or Adjudication made by the Trademark Office.
After receipt of the application, the Trademark Review and Adjudication Board shall accept the application found to have met the requirements for acceptance upon examination; the Trademark Review and Adjudication Board shall not accept the application if it does not meet the requirements, and notify the applicant in writing and explain the reason. Where rectification is required, the Trademark Review and Adjudication Board shall notify the applicant to make the rectification within thirty days from the date of receipt of the notification. If an application still fails to meet the requirements after the rectification, the Trademark Review and Adjudication Board shall not accept it, and notify the applicant in writing and explain the reason. If the rectification is not made within the time limit, the application shall be deemed to have been withdrawn, and the Trademark Review and Adjudication Board shall notify the applicant in writing.
Where it finds that an application for the trademark review and adjudication does not meet the requirements for acceptance after accepting it, the Trademark Review and Adjudication Board shall reject the application and notify the applicant in writing and explain the reason.
Article 31 After accepting an application for the trademark review and adjudication, the Trademark Review and Adjudication Board shall send, in a timely manner, a copy of the Application to the other party, and require him to reply within thirty days from the date of receipt of the copy of the Application, failure to make a reply at the expiration of the time limit shall not affect the review and adjudication by the Trademark Review and Adjudication Board.
Article 32 Where an interested party needs to supplement relevant proofs after he files an application for trademark review and adjudication or makes a reply, he shall make a statement to this effect in the Application or Reply, and submit the proofs within three months from the date of filing the Application or making the Reply; if the proofs are not submitted at the expiration of the time limit, the supplementation thereof shall be deemed to have be abandoned.
Article 33 The Trademark Review and Adjudication Board may, at the request of an interested party or according to practical needs, decide to conduct a public review and adjudication of the application therefor.
Where it conducts a public review and adjudication of an application therefor, the Trademark Review and Adjudication Board shall notify the interested party, within fifteen days before the public review and adjudication is held, of the date and place of, and the persons conducting the public review and adjudication. The interested party shall make a reply within the time limit fixed in the notification.
Where the applicant does not reply, nor attend the public review and adjudication, his application for the trademark review and adjudication shall be deemed to have been withdrawn, and the Trademark Review and Adjudication Board shall notify him in writing. Where the respondent does not respond, nor attend the public review and adjudication, the Trademark Review and Adjudication Board may conduct a default review and adjudication.
Article 34 Where an applicant requests for the withdrawal of his application before the Trademark Review and Adjudication Board makes its decision or adjudication, he may withdraw his application after he explains the reason in writing to the Trademark Review and Adjudication. Where the application is withdrawn, the review and adjudication procedure terminates.
Article 35 Where an applicant withdraws his application for review and adjudication, he shall not file another application for the review and adjudication on the basis of the same facts and grounds. Where the Trademark Review and Adjudication Board has made the adjudication or decision as regards an application for trademark review and adjudication, any person shall not file another app1ication for the review and adjudication on the basis of the same facts and grounds.
Article 36 In respect of a trademark the registration of which is cancelled in accordance with Article 4l of the Trademark Law, the exclusive right to use the trademark shall be deemed to be non-existent from the beginning. The decision or adjudication on the cancellation of the registered trademark has no retroactive effect on a judgment or decision already made and executed by the People’s Court or the administrative department for industry and commerce on a case of trademark infringement, or on a trademark assignment or licensing contract executed. However, in respect of damage done to any other person in bad faith by the trademark registrant, he shall compensate for the damages.
Chapter VI Administration of the Use of Trademarks
Article 37 Where a registered trademark is used, it may carry the indication of “注册商标” (“Registered Trademark”) or the registration signs of the goods, packaging or description or other attachments of the goods.
The registration signs include 注 and ?. When used, the registration signs shall be marked or indicated on the upper or lower right hand corner of the trademark.
Article 38 Where a Certificate of Trademark Registration is lost or damaged, it is necessary to apply to the Trademark Office for re-issuance of the Certificate. Where the Certificate is lost, the registrant shall declare the loss of the Certificate by publishing a declaration in the Trademark Gazette. The damaged Certificate shall be returned to the Trademark Office when an application for re-issuance is filed.
Where a Certificate of Trademark Registration is forged or falsified, criminal liability shall be imposed according to law based on the provisions governing the crimes of forging and falsifying certificates issued by the State administrative authority or other crimes.
Article 39 In respect of any of the acts referred to in Article 44 (l), (2) and (3) of the Trademark Law, the administrative authority for industry and commerce shall order the trademark registrant to rectify the situation within a time limit. If the registrant refuses to comply, the case shall be submitted to the Trademark Office for cancellation of the registered trademark.
In respect of the act referred to in Article 44 (4) of the Trademark Law, any person may apply to the Trademark Office for cancellation of the said registered trademark and explain the circumstances. The Trademark Office shall notify the trademark registrant and require him to furnish, within two months from the date of receipt of the notification, proof of use of the trademark before the date on which the application for cancellation is filed, or a justifiable reason for its non-use. If no proof of use, nor a justifiable reason for the non-use is furnished at the expiration of the time limit or the proof is invalid, the Trademark Office shall cancel his registered trademark.
The proof of use of a trademark referred to in the preceding paragraph includes proofs of the registrant’s using the registered trademark and his licensing any other person to use the registered trademark.
Article 40 Registered trademarks cancelled according to the provisions of Articles 44 and 45 of the Trademark Law shall be published by the Trademark Office, the exclusive right in the registered trademarks shall terminate on the date of cancellation decision made by the Trademark Office.
Article 4l Where the Trademark Office or the Trademark Review and Adjudication Board cancels a registered trademark for reasons re1ating only to a part of the goods designated, the trademark registration in respect of this part of the designated goods shall be cancelled.
Article 42 The amount of the fine imposed in accordance with the provisions of Articles 45 and 48 of the Trademark Law shall be less than 20% of the illegal business turnover or less than two times the illegal profits.
The amount of the fine imposed in accordance with the provision of Article 47 of the Trademark Law shall be less than l0% of the illegal business turnover.
Article 43 Where he licenses another person to use his registered trademark, the licensor shall submit the trademark licensing contract to the Trademark Office for filing within three months from the date on which the contract is concluded.
Article 44 Where any person contravening the provisions of Article 40, paragraph two, of the Trademark Law, the administrative department for industry and commerce shall order the offender to rectify the situation within a prescribed time limit. Where the offender refuses to comply, the administrative department for industry and commerce shall confiscate the representations of his trademark. If it is difficult to detach the representations of the trademark from the goods, both the representations and goods shall be confiscated and destroyed.
Article 45 Where a trademark is used in contravention of the provision of Article 13 of the Trademark Law, an interested party may request the administrative department for industry and commerce for prohibition of the use. When filing the request, the interested party shall submit proofs that his trademark constitutes a well-known mark. If the Trademark Office establishes it as a well-known mark according to the provision of Article l4 of the Trademark Law, the administrative department for industry and commerce sha1l order the infringer to cease the act of using the well-known mark in contravention with the provision of Article l3 of the Trademark Law, confiscate and destroy the representations of the trademark. If it is difficult to detach the representations of the trademark from the goods, both the representations and goods shall be confiscated and destroyed.
Article 46 Where a trademark registrant applies for the removal, from the Register, of his registered trademark or the registration of his trademark in respect of a part of the designated goods, he shall send an Application for Trademark Removal and return the original Certificate of Trademark Registration to the Trademark Office.
Where a trademark registrant applies for the removal, from the Register, of his registered trademark or the registration of his trademark in respect of a part of the designated goods, the exclusive right in the registered trademark or the effect thereof on the part of designated goods shall terminate on the date of receipt by the Trademark Office of the Application for Trademark Removal.
Article 47 Where the registrant of a trademark dies or ceases, and no formalities have been gone through for transfer of the registered trademark at the expiration of one year from the date of the death or cessation, any person is entitled to apply to the Trademark Office for the removal, from the Register, of the registered trademark. When filing an application for the removal, he shall submit the proofs of the death or cessation of the trademark registrant.
Where a registered trademark is removed from the Register owing to the death or cessation of the trademark registrant, the exclusive right to use the registered trademark terminates from the date of the death or cessation of the trademark registrant.
Article 48 Where a registered trademark is cancelled or removed from the Register according to the provisions of Articles 46 and 47 of these Regulations, the original Certificate of Trademark Registration shall become invalid. Where the registration of the trademark in respect of a part of the designated goods is cancelled, or where the trademark registrant applies for removal, from the Register, the registration of the trademark in respect of a part of designated goods, the Trademark Office shall return, to the registrant, the original Certificate of Trademark Registration on which the approval of the cancellation or removal has been marked, or re-issue the Certificate of Trademark Registration and publish the re-issuance.
Chapter VII Protection of the Exclusive Right to Use Registered Trademark
Article 49 Where an registered trademark contains the generic name, shape or model of the goods in respect of which it is used, or directly indicates the quality, main raw material, function, use, weight, quantity and other features of the goods, or contains a place name, the holder of the exc1usive right to use the registered trademark has no right to prohibit others from duly using it.
Article 50 Any of the following acts shall be an act of infringement of the exclusive right to use a registered trademark as provided for in Article 52 (5) of the Trademark Law:
(l) to use any design which is identical with or similar to the registered trademark of another person on the same or similar goods, as the designation or decoration of the goods, which mislead the public; or
(2) to intentionally provide any other person with such facilities as of storage, transportation, postal service, and concealment in his infringement of the exclusive right of another person to use a registered trademark.
Article 51 Where the exc1usive right to use a registered trademark has been infringed, any person may lodge a complaint with, or file a report on, the case of infringement to the administrative department for industry and commerce.
Article 52 An act of infringement of the exclusive right to use a registered trademark shall be subject to a fine of not exceeding three times the amount of the illegal business turnover. Where it is impossible to calculate the amount of the illegal business turnover, the fine shall be no more than RMB l00,000 yuan.
Article 53 Where a trademark proprietor believes that another person has registered his well-known trademark as an enterprise name, which is likely to deceive, or mislead, the public, he may file an application with the competent authority for the registration of enterprise names for cancellation of the registration of the enterprise name. The competent authority for the registration of enterprise names shall handle the matter pursuant to the Regulations for the Administration of Registration of Enterprise Names.
Chapter VIII Supplementary Provisions
Article 54 Where a service mark already in continuous use up to l July l993 which is identical with or similar to the service mark of another person already registered in respect of the same or similar services may continue to be used. However, a mark the use of which has been suspended for three or more years after l July l993 shall not continue to be used.
Article 55 The specific measures for the administration of trademark agency shall be separately provided for by the State Council.
Article 56 The classification of goods and services for the purposes of registration of trademarks shall be formulated and published by the administrative department for industry and commerce under the State Council.
The documents or forms for filing applications for the registration of trademarks or for attending to other trademark matters shall be formulated and published by the administrative department for industry and commerce under the State Council.
The rules for trademark review and adjudication of the Trademark Review and Adjudication Board shall be formulated and published by the administrative department for industry and commerce under the State Council.
Article 57 The Trademark Office shall set up the Register of Trademark Registration for the documentation of registered trademarks and matters relating to the registration.
The Trademark Office shall compile, print and distribute the Trademark Gazette to publish trademark registrations and other related matters.
Article 58 Fees shall be paid for applying for the registration of trademarks or for handling other trademark matters. The items and schedule of the fees shall be provided for and published by the administrative department for industry and commerce under the State Council in conjunction with the competent price administrative department under the State Council.
Article 59 These Regulations shall enter into force on l5 September 2002. The Implementing Regulations of the Trademark Law of the People’s Republic of China promulgated by the State Council on l0 March l983, revised for the first time with the approval by the State Council on 3 January l988, and revised for the second time with the approval by the State Council on 15 July 1993 and the Answers by the State Council to Issues Relating to the Attachment of Certificates for the Purpose of Trademark Registration shall simultaneously be abrogated.