Here’s the links to the latest issue – plenty to read
This newsletter mainly covers:
- Ensuring Consistency of Chinese Legal Rules
- Two Patent Experts Explain Why Guiding Case No. 20 Lost Its Guiding Effect
- How Guiding Case No. 24 Helps China Develop Its Version of the Eggshell-Skull Rule
- Is China’s ODR (Online Dispute Resolution) Nothing More than Online ADR (Alternative Dispute Resolution)?
- Results of the Fourth Stanford CGCP Student Writing Contest
Ensuring Consistency of Chinese Legal Rules
Chinese courts’ lack of authority to review the constitutionality of laws, administrative regulations, and other important rules often prompts one to wonder: is the country’s Constitution merely an aspirational document? In fact, Chinese courts cannot even review administrative regulations and other important rules to ensure that they are not in conflict with national laws. So, who can?
The Legislation Law of the People’s Republic of China (enacted in 2000 and amended in 2015) does outline a mechanism for the review of legislation. However, details about the mechanism remained largely unclear until the adoption in December 2019 of the Measures for the Recordation and Review of Regulations and Judicial Interpretations (the “Measures”). In Issue 13 (June 2021) of China Law Connect (“CLC”) (ISSN 2576-1927 (Print); ISSN 2576-1935 (Online)), Dr. Mei Gechlik (Founder and Director of the China Guiding Cases Project (the “CGCP”)) and Wen Luo (a senior editor of the CGCP) contributed an article titled Plan for the Construction of a Rule of Law China (2020–2025): A Recordation and Review System that Ensures the Uniformity of China’s Legal System to discuss the Measures (e.g., the scope of review, standards of review, and corrective measures) and its impact.
Two Patent Experts Explain Why Guiding Case No. 20 Lost Its Guiding Effect
Issue 12 (March 2021) of CLC published a commentary written by Judge GUO Feng, a senior judge of the Supreme People’s Court (the “SPC”) and the Executive Director of the SPC’s Research Office, in which he briefly explains why Guiding Case No. 20 (Shenzhen Siruiman Fine Chemicals Co., Ltd. v. Shenzhen Kengzi Tap Water Co., Ltd. and Shenzhen Kangtailan Water Treatment Equipment Co., Ltd., A Dispute over Infringement of Invention Patent Rights) lost its guiding effect.
In Issue 13 of CLC, two patent experts, Jacob Zhang (Deputy General Manager, Partner, and Patent Attorney of Lung Tin Intellectual Property Agent Ltd.) and Matthew Ma (Patent Attorney at Wolf, Greenfield & Sacks, P.C.), provide more details to analyze why the Guiding Case is in conflict with a new judicial interpretation and a new provision of the Patent Law of the People’s Republic of China. The authors also comment on other shortcomings of Guiding Case No. 20.
How Guiding Case No. 24 Helps China Develop Its Version of the Eggshell-Skull Rule
The eggshell-skull rule is a well-established rule of tort law under the common law system. The guiding principle of Guiding Case No. 24, one of the most frequently cited Guiding Cases in subsequent cases, is very similar to this rule. In fact, the Office for the Work on Case Guidance of the SPC clearly stated that this Guiding Case represents “the specific application of [the eggshell-skull rule] in disputes over liability for traffic accidents”.
How has the Chinese version of this rule evolved through subsequent cases? For example, has this rule been expanded for application in other personal injury cases? In the commentary titled How Guiding Case No. 24 and Its Hundreds of Subsequent Cases Have Shaped the Chinese Version of the Eggshell-Skull Rule, Ziwen Tan and Xin Shen, editors of the CGCP, share the results of their study based on 23 subsequent judgments or rulings carefully selected from more than 500.
Is China’s ODR (Online Dispute Resolution) Nothing More than Online ADR (Alternative Dispute Resolution)?
Shaoxing Municipality, Zhejiang Province, is the birthplace of the “Fengqiao Experience”, which refers to the approach created in the early 1960s in Fengqiao Town (now governed by Shaoxing Municipality) that uses the strength of the grassroots level to resolve conflicts at that level. In the past few years, based on the “Fengqiao Experience” and a few different innovative mechanisms, the courts in Shaoxing Municipality have gradually built the so-called “One Body, Two Wings, and Three Dimensions” system for dispute resolution and litigation services. Since this Shaoxing online dispute resolution model provides a new solution for the improvement of the litigation services system in courts across China, Judge GE Jiguang (Senior Judge, Intermediate People’s Court of Shaoxing Municipality, Zhejiang Province) and Dr. YAO Yao (Researcher, City Brain Research Institute, Zhejiang University City College; Lecturer, School of Law, Zhejiang University City College) introduce the model in the article titled The Shaoxing Online Dispute Resolution Model: A New Approach to Improving China’s Litigation Services System to explain its effectiveness and how Shaoxing courts have accomplished the goal of progressing from “online ADR” to “judicial ODR”.
Results of the Fourth Stanford CGCP Student Writing Contest
Issue 13 of CLC also features three outstanding pieces written by winners of the Fourth Stanford CGCP Student Writing Contest. The topics covered include green finance, organ donation, and life and death education in China.
We hope you like the insights and information shared in this CLC!
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The CGCP thanks the following sponsors for their generous support:
Alston & Bird LLP, Beiming Software Co., Ltd., the Center for East Asian Studies of Stanford University, China Fund of the Freeman Spogli Institute for International Studies of Stanford University, International and Foreign Language Education (IFLE) office of the U.S. Department of Education (grant 84.015A)*, Karisma Institute, the McManis Wigh China Foundation, Third Classroom, and Tencent Research Institute.
