China Laws and Regulations Update in April 2021

1. Interpretation of the Supreme People’s Court on Exemplary Damages in Civil Cases of Intellectual Property Infringement

Promulgated by the Supreme People’s Court

Promulgation date: 3 March 2021

Implementation date: 3 March 2021

Document number: L.I.[2021]4

Highlights of Interpretation are its clarification of the following matters.

First, relationship between “deliberateness” and “maliciousness”. “Deliberateness” is one of the subjective elements of exemplary damages in the civil law and corresponds to “maliciousness” in Article 63.1 of the trademark law and Article 17.3 of the unfair competition law. Based on opinions and studies in preparations for the Interpretation, “deliberateness” and “maliciousness” should have the same meaning.

Second, criteria for deciding if circumstances are serious. Serious circumstances are one of elements of exemplary damages, mainly including objective factors such as ways and consequences of acts, usually not considering subjective state of the person who did such acts. Factors that should be considered pursuant to Article 4 of the Interpretation mainly come from existing typical cases.

Third, calculation method of the amount on which exemplary damages are based, which is clarified in Article 71 of the patent law, Article 54 of the copyright law, Article 63 of the trademark law, Article 17 of the unfair competition law and Article 73 of the seed law. The order in which the base amounts is not mentioned in the copyright and patent laws but specified in the patent, unfair competition and seed laws. Some laws include reasonable expenses in exemplary damages, while others don’t. Article 5 of the Interpretation provides that “in case of any different provision in law, such provision shall apply”. The law means the applicable law relating to a particular type of cases.

(Source: Supreme People’s Court)

http://www.court.gov.cn/zixun-xiangqing-288861.html

2. Instructions on Tougher Attacks on False Action Crimes

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

Promulgation date: 10 March 2021

Implementation date: 10 March 2021

Document number: L.P.[2021]10

Instructions consists of seven chapters and twenty nine articles with titles of general principles, identification and ascertainment of false action crimes, transfer of clues and case investigation and treatment, connections between processes, apportionment of responsibilities, collaboration mechanism and supplementary provisions.

Instructions notes that courts and public prosecution, public security and judicial administration authorities should separate and do their jobs legally, cooperate, discuss and coordinate with each other, promptly report to each other suspicious false action crimes found when doing their jobs, jointly prevent and punish false action crimes, study and establish a civil judgement and ruling sharing mechanism and data sharing platform, apply information technology to find out clues of false action crimes, gradually share information and data of false action cases, implement the requirement that persons who administer law familiarize the public with law, increase the awareness of false action crimes in the whole society and make people committing false action crimes frightened.

(Source: Supreme People’s Court)

http://www.court.gov.cn/fabu-xiangqing-290281.html

3. Law on the Organization of Sessions of National People’s Congress of China (Revised)

Promulgated by the National People’s Congress

Promulgation date: 12 March 2021

Implementation date: 12 March 2021

Document number: Chinese President Order (No.73)

Main changes are as follows.

  • a new chapter of “general principles”

The revised version includes a new chapter of “general principles”. First, there are new provisions relating to the nature and status of the national people’s congress and its standing committee. In the constitution the national people’s congress is the highest authority of the power of state and the standing committee of the national people’s congress is its permanent organ (Article 2 of the draft of the revised version).

  • improvements to provisions relating to the leaders’ office of the national people’s congress and the chairman of the standing committee of the national people’s congress
  • improvements to provisions relating to the special committee of the national people’s congress
  • additional provisions relating to the supervision system reform
  • improvements to personnel appointment and dismissal rights of the standing committee of the national people’s congress
  • working and keeping in contact with delegates more closely. (Source: Xinhua News)

http://www.xinhuanet.com/politics/2021lh/2021-03/12/c_1127201007.htm

4. Deliberation Rules for Sessions of the National People’s Congress of China (Revised)

Promulgated by the National People’s Congress

Promulgation date: 12 March 2021

Implementation date: 12 March 2021

Document number: Chinese President Order (No.74)

Main changes are as follows.

  • preparations for sessions
  • discipline at sessions
  • simplification of session procedures to increase the quality and efficiency of deliberations
  • open sessions and information application
  • improvements to law and proposal deliberation procedures
  • standardization of plan outline review, approval and modification procedures
  • improvements to publication procedures for matters passed at sessions. (Source: Website of Xinhua News)

http://www.xinhuanet.com//mrdx/2021-03/the12/c_139805767.htm

5. Decision Made by the National People’s Congress to Improve the Election System of Hong Kong

Promulgated by the National People’s Congress

Promulgation date: 11 March 2021

Implementation date: 11 March 2021                        

The decision states the special administrative region of Hong Kong will establish an election committee that is widely representative, suitable for Hong Kong and in the interests of the whole society. The election committee is in charge of electing the chief executive to be appointed, members of the legislative council, nominating candidates of the chief executive and legislative council members and other matters.

The decision states that the chief executive of Hong Kong is elected by the election committee and appointed by the central government from candidates each nominated by at least 188 of members of the election committee who participate in the election and include at least fifteen persons from each of the above five sectors, with over half of votes of  all members of the election committee, each of whom has one secret vote, in favor of the chief executive to be appointed.

The decision states that legislative council of Hong Kong in every term have ninety members elected by the election committee, function groups or election districts.

The decision requires establishment of the candidate qualification examination committee of Hong Kong in charge of examining and verifying qualifications of candidates of the election committee members, chief executive and legislative council members. (Source: Website of the Xinhua News)

http://www.xinhuanet.com/politics/2021lh/2021-03/11/c_1127199305.htm

6. Medical Device Supervision and Control Rules (Revised)

Promulgated by the State Council

Promulgation date: 18 March 2021

Implementation date: 1 June 2021

Document number: S.O.739  

In general, the revised Rules is mainly intended to, first, implement the drug and medical device assessment and approval system reform and confirm responsibilities of businesses; second, make further progress in the reform to streamline administration, delegate powers, and improve regulation and services, improve approval and filing procedures, give priority to approving creative medical devices, bring creative and dynamic qualities of the market into play and reduce the pressure of businesses; third, give stricter supervision and control in the full life cycle and whole process of medical device and increase the capacity of supervision and control; and forth, give tougher punishment for illegal activities to increase the cost of law violation. (Source: Website of the State Council)

http://www.gov.cn/zhengce/content/2021-03/18/content_5593739.htm

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