(By Lisa Li) In accordance with relevant laws of People’s Republic of China (“PRC), judicial interpretation by PRC Supreme People’s Court, judicial interpretation by local Superior People’s Courts and local regulations and based on the author’s research into and analysis of over two dozens of litigation cases from Shanghai and Beijing etc, the author elaborates on the application of laws on non-competition clauses from the perspective of Chinese employment law practice. The following is Part I of this topic on application of laws on non-competition clauses.
(By You Yunting) Recently, the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the Interpretations on Some Issues Concerning the Application of Laws for in the Handling of Defamation via Information Networks and Other Criminal Cases (hereinafter the “Judicial Interpretation”).
Upon reading the whole text of the Judicial Interpretation, in the author’s opinion, this Judicial Interpretation has a bad negative impact upon the rule of law and freedom of speech rather than the positive value of cracking down on web rumors and purifying the environment of internet, because of considering that this Judicial Interpretation attempts to use the idea of “governing the country with severe law during the trouble times” to solve the web rumors so that current crackdown against web rumors is too hard and the legislative proceedings of this Judicial Interpretation are defective .
II. The Problem in Violation of the Principle of Legality
(By You Yunting) According to media reports (note: the link is in Chinese), Eli Lilly and Company and Eli Lilly (China) sued an employee named Huang in the Shanghai No.1 Intermediate People’s Court. That court recently issued the first trade secret litigation injunction in China’s history, and ruled a litigation preservation that prohibited Huang from disclosing, using, or allowing any third party to use 21 documents that were protected as trade secrets by the plaintiff.
Inductions to the Case:
The Second Record of the Day Four of the US Visit
(By You Yunting) In late March, the author had the opportunity to make a journey to the United States at the invitation of the U.S. government in order to better understand how the U.S. IPR system operates. On the morning of the fourth day of the journey, the writer visited the Business Software Association (BSA), which originally was not on the list of places to visit; it was later added on the recommendation of the writer. Despite this, the BSA received us with a chief inspection officer. The following is a record of our discussion carried out on that day. The topic of this post only concerns part of the discussion, and the reader may skip to the last part of this article if it interests you.
(By You Yunting) You could find the vendors selling the pirated films, TV dramas, music or software in almost each single street in the cities of China. And according to the current regulation that the amount of the sales totaled 500 discs could be prosecuted for the criminal law violation, any vendors who has been selling the pirated discs for at least one month could constitute the crime of copyright infringement, and to be sent in to jail. Despite what the vendor has done may damage the IPR of the copyright holder, it is fair to combat them under the laws and regulations. But it seems that the existing judicial interpretation has a too wide governing scope, and could have damaged the purpose of the Criminal law. And in the practices, the vendors who have been prosecuted for their piracy selling could be less than 1% of all. Thus it has made the vendors do not care the punishment regulated in the criminal law, and that on the other hand has broken the principle “any violation against the criminal law shall be prosecuted and punished”, and thereafter it may promote the law enforcement upon the selection or the law enforcement in the political campaign or the rule of man. And the at the same time, it could harm the IPR protection.
I. The Supreme People’s Court Issued the Judicial Interpretation on the Issue concerning the Application of Law in the Trial of Disputes Arising from Purchase and Sale Contracts
On 6th June,2012, the Supreme People’s Court published the Interpretation of Supreme People’s Court on the Issue concerning the Application of Law in the trial of Dispute Arising from Purchase and Sale Contract ( the “ Judicial Interpretation”), which becomes a remarkable interpretation on the issues concerning purchase and sale contracts after the promulgation of Property Law. The Judicial Interpretation is consisted of 46 articles, completely covering the conclusion and validity of a purchase and sale contract, the delivery and transfer of title, risk bearing, inspection of objectives, liability for breach, retention of title and so on. The Judicial Interpretation will come into force on 1st July, 2012, and it will be applied to the cases that haven’t been finally sentenced when the Judicial Interpretation executes, however, it shall not be applied in the case that has been sentenced before the implementation of the Judicial Interpretation but the retrial is initiated.