Here’s the latest issue with links to full articles
Senior Chinese Judge Provides Key Insights about China’s Civil Code, Judicial Interpretations, and Guiding Cases
This newsletter mainly covers:
- Senior Judge of the Supreme People’s Court Shares His Vision About China’s Civil Code, Judicial Interpretations, and Guiding Cases
- Why Guiding Case No. 9 No Longer Has Guiding Effect
- The Almost Forgotten Story Behind Guiding Case No. 82
- Another International Collaboration in Legal Education
Senior Judge of the Supreme People’s Court Shares His Vision About China’s Civil Code, Judicial Interpretations, and Guiding Cases
China’s promulgation of the Civil Code (which entered into effect on January 1, 2021) prompted the Supreme People’s Court (the “SPC”) to review all of the 591 judicial interpretations and 139 Guiding Cases that were in effect at the time and to adopt new judicial interpretations, in hopes of ensuring the uniform and correct implementation of the Civil Code in Chinese courts. The Civil Code is China’s first national legislation designated as a legal code and has more than 1,200 articles covering a wide range of legal relationships, such as marriages, inheritances, adoptions, contracts, guarantees, property rights, and tort liabilities. Given the importance of the Civil Code, how will this shape the development of judicial interpretations and Guiding Cases?
To answer this question, the China Guiding Cases Project (the “CGCP”) is very honored to feature in Issue 12 of China Law Connect (“CLC”) (ISSN 2576-1927 (Print); ISSN 2576-1935 (Online) an article contributed by Judge GUO Feng, a senior judge of the SPC and the Executive Director of the Court’s Research Office. Drawing on his experience accumulated from his participation in the enactment of the Civil Code and his supervision of all of the SPC’s work related to judicial interpretations and Guiding Cases, Judge Guo shares his vision by analyzing five important trends that the development of judicial interpretations and Guiding Cases will follow in the Civil Code era. In addition, Judge Guo explains, inter alia:
- the results of the SPC’s review of preexisting judicial interpretations;
- the key points of the newly formulated judicial interpretations; and
- the reasons that the SPC took an unprecedented step to decide that two Guiding Cases, namely, Guiding Case Nos. 9 and 20, will no longer be for “reference and imitation”
For example, regarding 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), Judge Guo explains how the underlying legal principle of the Guiding Case is now determined to be inconsistent with the original legislative intent of a related provision of the Patent Law of the People’s Republic of China.
The SPC’s careful review of preexisting Guiding Cases signals the emergence of a process that, if used well, will help strengthen the development of these cases and ensure that they facilitate the uniform and accurate application of Chinese laws.
Why Guiding Case No. 9 No Longer Has Guiding Effect
Following Judge Guo’s brief explanation regarding why Guiding Case No. 9 (Shanghai Cunliang Trading Co., Ltd. v. JIANG Zhidong, WANG Weiming et al., A Sale and Purchase Contract Dispute) no longer has guiding effect, two senior editors of the CGCP, David Wei Zhao and Haoxuan Cheng, went further to review various sources, including a series of cases relevant to Guiding Case No. 9, to uncover major controversies surrounding the application of this Guiding Case.
Their study shows that while Guiding Cases are released by the SPC, subsequent developments with respect to them are very much in the hands of courts at different levels in the country. These courts play important roles by helping legal principles embedded in Guiding Cases gradually evolve. With respect to Guiding Case No. 9, years of judicial practices after its release in 2012 have revealed its major limitations. In response, the SPC convened a special conference in 2019 to address, inter alia, problems arising from Guiding Case No. 9 and provide specific guidance (written as part of the minutes of the conference) that have, in effect, replaced the Guiding Case.
While the new guidance offered by the conference minutes is welcome, the unclear legal status of the document and its uncertain relationship with Guiding Cases have given rise to new problems. David Wei Zhao and Haoxuan Cheng also discuss this issue in their article and offer related suggestions.
The Almost Forgotten Story Behind Guiding Case No. 82
Studying Guiding Cases allows one to see how Chinese legal principles are applied and fine-tuned to solve legal issues arising from real facts. However, Guiding Cases can offer more. The efforts contributed by two lawyers in Shanghai, Qiaochao Xu and Ruoyu Ren, to explain “strange facts” present in Guiding Case No. 82 (WANG Suiyong v. Shenzhen Ellassay Fashion Co., Ltd. and Hangzhou Intime Century Department Store Co., Ltd., A Dispute over Infringement of Trademark Rights)have produced an impressive analysis of different standards used by China’s administrative organs (e.g., the Trademark Office) and courts in determining whether goods or services are similar in related trademark disputes.
The main ruling of Guiding Case No. 82 is that WANG Suiyong’s use of trademark rights, which were not obtained in good faith, to bring an infringement of rights lawsuit against Ellassay Company’s proper use of its trademark constituted an abuse of rights. Ellassay Company’s victory in this case allowed the company to effectively oppose the registration of a disputed trademark, to which WANG Suiyong claimed to have exclusive rights. A closer investigation reveals that WANG Suiyong also claimed to have exclusive rights to another trademark, which also infringed on Ellassay Company’s prior rights. Yet the company only filed an opposition against one of the two disputed trademarks during their registration application processes. Why? In the article titled “Understanding the Story Behind Guiding Case No. 82: Differences Between the Administrative and Judicial Standards for Determining ‘Similar Goods’ and a Discussion of Related Issues”, Qiaochao Xu and Ruoyu Ren draw on empirical data to explain this important but seemingly forgotten aspect of Guiding Case No. 82.
The previous issue of CLC featured a CGCP Interview of Stephen Yandle, Vice Dean Emeritus of the Peking University School of Transnational Law (the “STL”), in which he shared the STL’s success in promoting understanding of U.S. law in China. This issue features another CGCP Interview, in which Monty Silley, European Executive Co-Dean of the China–EU School of Law (the “CESL”) at the China University of Political Science and Law, explains how his law school helps bridge the gap between China and Europe. Formerly an editor of the CGCP, Co-Dean Silley shared this observation:
[…], I see the work of the CGCP and CESL as being well aligned. Both are dedicated to connecting the East and West and providing the international community with an enhanced understanding of China’s evolving legal landscape.
To read the full texts of the above two interviews, sign up here for free to get access to e-China Law Connect (Trial Version) published by the CGCP.
Co-Dean Silley’s encouraging words are most timely, as the CGCP just celebrated its 10th anniversary in February 2021. Compared with the time when the project was founded, the current situation around the world seems to be presenting all of us with more challenges. Yet, it is exactly because of these challenges that we need to continue our mission to bring about more positive changes in China, especially its judiciary. We hope you will continue to support us and enjoy the insights and information shared in CLC!
Art on the 2021 Covers of China Law Connect
Click to see the Artist’s video page
The CGCP is excited to be able to partner with CHEN Xuncheng, a master of ceramic art from Guangdong Province, China, to produce the covers of CLC issues published in 2021.
Playing leadership roles in multiple arts organizations, Mr. Chen actively promotes the development of Chinese art. Since Mr. Chen was named one of the “Young and Middle-Aged Ceramic Artists Influencing China’s Media” in 2012, his beautiful creations have been featured in various media and publications. For more information about the artist and to see a video of one of his works, visit https://cgc.law.stanford.edu/a-purple-aura-from-the-east.
Online Access to China Law Connect
Interested in getting online access to CLC issues? Individuals can purchase a license to read via e-China Law Connect all journal content published in select calendar years. Interested groups (e.g., law firms, libraries, etc.) can contact us ([email protected]) to learn about our attractive group rates.
Purchases of digital access to e-China Law Connect help sustain the CGCP so that the project can continue to provide you with exclusive, authoritative content (e.g., the above-mentioned piece by SPC Judge Guo). To thank you for your e-China Law Connect purchase for issues published in any single year, we will also include complimentary access to all issues published in 2018.
Since it was founded in February 2011 to help China establish a more transparent and accountable judiciary, the CGCP has shared significant insights about the country’s Guiding Cases and related developments. To continue receiving messages that highlight these insights, please subscribe to our mailing list here.
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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.
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