Giving rewards for returning lost property?
Giving rewards for returning lost property?
China Daily Updated: 2005-08-12 06:01
In the middle of July, the Standing Committee of the 10th National People's Congress (NPC) released the Property Rights Law, seeking feedback from the general public.
One of the most contentious matters in the draft is whether a reward should be paid for recovered property. The draft clearly stipulates lost property should be returned to its rightful owner.
Those that find misplaced articles should inform the owner or the person who lost them, or hand them in to relevant authorities, within 20 days of the property being found.
The owner of the lost property should cover any storage fee incurred when they collect their belongings. If the finder has used the item in some way they have no right to claim either a storage fee or a reward.
Those who offer a reward for returned property should pay up as agreed. Lost property reverts to the State if nobody claims it.
After the draft law was made public, it sparked extensive debate. Some say the clause encouraging the payment of rewards must be changed, as it goes against the traditional Chinese virtue of "returning the money found without payment." The law should encourage these sound values and call on society to carry on this tradition, many think.
But others argue the terms of the draft do not contradict traditional virtues. Judging from foreign legislation, the attitude appears to be that if lost property is of little value and is not State-owned, finders can be keepers.
China's legislation should be brought in line with international practice. It is unnecessary to return items worth perhaps less than 10 yuan (US$1.23), as the trouble it might take to track down the owner would make it impractical.
As a result, finders feel it is within their rights to keep property of little value. For more valuable property they have the right to claim a certain amount as a handling fee, and would expect to receive a reward.
Zhao Chenguang, an official from the Wenfeng District People's Procuratorate in Anyang, Henan Province, said: "From a very young age, people are educated about returning money found. However, does the new trend make this traditional virtue seem old-fashioned?"
A young security guard from the countryside, who earned only 300 yuan (US$37) a month, found a wallet containing 80,000 yuan (US$9,870) in cash and other valuables whilst on duty, and took the trouble to return the wallet to its owner in Anyang. The young man refused to accept the 5,000-yuan (US$616) reward offered by the owner.
The media praised the young man for his righteous act, especially in light of the fact that his father is a poor farmer and his mother has been ill in bed for a long time. The reward money would have been a huge help for him and his family.
Many were inspired by the unselfish security guard's actions. But others took pity on him.
Some say the man was right not to take the reward, as he became a righteous hero. On the other hand, some believe he could have accepted the money with a clear conscience as it would have been proper, reasonable and lawful to do so.
Indeed it would have been right for the young guard to take the money. He should be rewarded not only for returning the lost wallet, but also for his honesty and integrity. China is entering a new era of the rule of law and people are becoming more sensitive to the principles of right and wrong. According to the General Principles of the Civil Law of China (the General Principles), people should be compensated for voluntary service. It is therefore lawful to accept cash rewards.
So why did the young man refuse to accept the money? He was obviously influenced by traditional values, and of course his action was his personal choice. But in terms of encouraging people to act morally and rationally, the young man should have accepted the reward.
If integrity creates embarrassment, does it mean the evaluation criterion of this social virtue is out-dated? Should virtues advance with the times?
Xia Qingwen, a freelance writer, said: "I think people confuse the two concepts of debt and remuneration. Their differences lie first in voluntary service."
Volunteering is a legal concept prescribed in the General Principles, Article 93. If a person provides services in order to protect another person's interests when he or she is not legally or contractually obligated to do so, he or she is entitled to claim from the beneficiary the expenses necessary for such assistance.
The stipulation is intended to encourage people to help others in a just cause to create a harmonious social atmosphere from a legal perspective. It can also be viewed as an incentive to return lost property.
But if someone incurs a loss in the process of managing another's affairs or pays necessary storage and management fees, a debtor-creditor relationship will be formed. That is called a debt for voluntary service, which should be repaid by the owner. This system is recognized in the majority of countries.
Remuneration is money claimed by one person, apart from necessary expenses, for helping another, the purpose of which is to gain additional profit. The traditional Chinese virtue advocating returning misplaced articles aims to promote morality. In other words, it calls for people doing good turns without counting gains or losses, which is totally different from the debt created by voluntary service.
In a society with a market economy, if the law does not protect the rights and interests of a voluntary service provider, rewarded only by moral superiority, who will be willing to sacrifice his or her time, energy and money to care for or return lost property for free? If this idea becomes dominant, lost property will go unreturned and morality will not be promoted.
Therefore the stipulation in the draft law is reasonable and rational.
He Xiangdong, a columnist at People's Daily, said: "Returning found money belongs to the category of moral behaviour. The legislation deals with property rights, so the emphasis of the law should be requiring citizens to leave lost property where it is, without being virtuous in the name of the law. Meanwhile, it is irrational to encourage people to return money found by way of rewarding them."
When someone finds lost property that has nothing to do with him or her or the wider public interest, does he or she have the right to exercise any power over those items? From the perspective of the property rights law, the proper thing to do should be "leaving the thing where it is."
Our Constitution has already confirmed the protection of private property, which is inviolable. In addition, if someone returns lost property, he or she must do so in the spirit of good will, and should not claim a reward.
As for owners, it is up to them to show their gratitude whether materially or not. If the giving of rewards is forcibly stipulated by law, owners may be upset and violate it. As for lost property keepers, if the law says it is accceptable for them to claim a reward, things may turn sour.
We should not encourage good deeds by way of offering legal rewards. We may try to preserve morality by law but will actually destroy it in doing so.
(China Daily 08/12/2005 page4)
Friday, August 12, 2005
Wednesday, August 10, 2005
Scholars want outdated civil law revised
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2001-04-10
China Daily
Chinese law scholars say it is time to think about revising the 10-year-old Civil Procedure Law because the nation's market economy is developing at an increasingly high speed and judicial reform is deepening.
"Conditions are now ripe to consider revision as the theory and practice of civil law have both been abundant during the past ten years," said Jiang Wei, a professor of civil procedural laws with the Renmin University of China and a major drafter of the 10-year-old law.
"The implementation of this law helped to highlight the importance of procedural justice in a nation where substantive law prevails over procedural law and criminal law prevails over civil law," said Fan Chongyi, director of the Procedural Law Research Centre with the China University of Politics and Law.
The law was widely regarded as a milestone in the country's legislation 10 years ago, he said.
However, Fan said the law needs to be revised to better meet the demands of the market economy and ongoing judicial reform under new circumstances.
Fan made the remarks at a national seminar on civil procedural law held yesterday in Beijing.
Huang Songyou, a civil division chief with the Supreme People's Court, shared Fan's view.
"Problems that have arisen in the market economy are challenging the current civil procedure law and regulations," he said.
The major problem of the law is that regulations on evidence, the enforcement of verdicts and the time limits for trials are too general for handling some complicated cases.
Late Chinese leader Deng Xiaoping's historical south tour, which put the nation's reform and opening up move in the fast lane, took place in 1992, one year after the Civil Procedure Law came into force.
Some of the regulations of the law such as the rules of evidence are too general and simple for judges to apply, Huang complained. They should be more specific and practical, he said. He said the future revision of the law should not only suit economic development but also offer more legal support for the country's ongoing judicial reform.
Some of these reform measures in civil trials are supported by judicial interpretation in the Supreme People's Court rather than the current civil procedure law.
The National People's Congress, the country's top legislative body, empowers the Supreme People's Court to work out judicial interpretations to guide the lower courts when there is a legal loophole or no relevant law.
The two-day seminar, which attracted more than 70 scholars of civil procedural law from across the country, discussed the problems of the existing law and possible solutions to them.
2001-04-10
China Daily
Chinese law scholars say it is time to think about revising the 10-year-old Civil Procedure Law because the nation's market economy is developing at an increasingly high speed and judicial reform is deepening.
"Conditions are now ripe to consider revision as the theory and practice of civil law have both been abundant during the past ten years," said Jiang Wei, a professor of civil procedural laws with the Renmin University of China and a major drafter of the 10-year-old law.
"The implementation of this law helped to highlight the importance of procedural justice in a nation where substantive law prevails over procedural law and criminal law prevails over civil law," said Fan Chongyi, director of the Procedural Law Research Centre with the China University of Politics and Law.
The law was widely regarded as a milestone in the country's legislation 10 years ago, he said.
However, Fan said the law needs to be revised to better meet the demands of the market economy and ongoing judicial reform under new circumstances.
Fan made the remarks at a national seminar on civil procedural law held yesterday in Beijing.
Huang Songyou, a civil division chief with the Supreme People's Court, shared Fan's view.
"Problems that have arisen in the market economy are challenging the current civil procedure law and regulations," he said.
The major problem of the law is that regulations on evidence, the enforcement of verdicts and the time limits for trials are too general for handling some complicated cases.
Late Chinese leader Deng Xiaoping's historical south tour, which put the nation's reform and opening up move in the fast lane, took place in 1992, one year after the Civil Procedure Law came into force.
Some of the regulations of the law such as the rules of evidence are too general and simple for judges to apply, Huang complained. They should be more specific and practical, he said. He said the future revision of the law should not only suit economic development but also offer more legal support for the country's ongoing judicial reform.
Some of these reform measures in civil trials are supported by judicial interpretation in the Supreme People's Court rather than the current civil procedure law.
The National People's Congress, the country's top legislative body, empowers the Supreme People's Court to work out judicial interpretations to guide the lower courts when there is a legal loophole or no relevant law.
The two-day seminar, which attracted more than 70 scholars of civil procedural law from across the country, discussed the problems of the existing law and possible solutions to them.
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optionRespect for law with no exceptions
2002-12-25
China Daily
A local court's recent ruling on juvenile offenders was calculated to upset the country's legal professionals.
The Intermediate People's Court of Hefei, capital of East China's Anhui Province, issued a ruling earlier this month saying it will entrust some so-called "social investigators" to collect information about the experience and daily activities of juvenile delinquents, which will be taken into account when deciding their punishment.
The measure is designed to give "special care" to young offenders and help them become reformed characters.
This is understandable to an extent in that increasing attention is being paid to the rights of suspects and defendants in China's criminal procedures in recent years.
But the Hefei court has overdone it this time. By requiring evidence, particularly for young criminals, the court has failed to maintain a neutral stance, which is unfair to the victims of juvenile delinquency.
In addition, providing evidence is beyond the court's authority.
The practice of the Hefei court is, in effect, also creating extra standards for juvenile cases, which is detrimental to the integrity of the country's legal environment.
China's legal system is founded on uniform statutes made by the legislative body, which is a key to the stability of this vast nation.
In other words, what are crimes, how to verify crimes and how to punish criminals should be defined exclusively by the law, rather than anyone else.
If every local court set their own standards in enforcing the law, the law will lose its meaning in the country.
Although local courts' constant innovation in their work has solidified China's legal environment, some reins are still needed on random inventions such as the ruling of the Hefei court.
2002-12-25
China Daily
A local court's recent ruling on juvenile offenders was calculated to upset the country's legal professionals.
The Intermediate People's Court of Hefei, capital of East China's Anhui Province, issued a ruling earlier this month saying it will entrust some so-called "social investigators" to collect information about the experience and daily activities of juvenile delinquents, which will be taken into account when deciding their punishment.
The measure is designed to give "special care" to young offenders and help them become reformed characters.
This is understandable to an extent in that increasing attention is being paid to the rights of suspects and defendants in China's criminal procedures in recent years.
But the Hefei court has overdone it this time. By requiring evidence, particularly for young criminals, the court has failed to maintain a neutral stance, which is unfair to the victims of juvenile delinquency.
In addition, providing evidence is beyond the court's authority.
The practice of the Hefei court is, in effect, also creating extra standards for juvenile cases, which is detrimental to the integrity of the country's legal environment.
China's legal system is founded on uniform statutes made by the legislative body, which is a key to the stability of this vast nation.
In other words, what are crimes, how to verify crimes and how to punish criminals should be defined exclusively by the law, rather than anyone else.
If every local court set their own standards in enforcing the law, the law will lose its meaning in the country.
Although local courts' constant innovation in their work has solidified China's legal environment, some reins are still needed on random inventions such as the ruling of the Hefei court.
option
optionFair rules on biz disputes
2003-02-11
China Daily
A plan is underway to revise the Arbitration Law to make China more business-friendly and more amicable for arbitration seekers.
"The present Arbitration Law needs changing to protect the autonomy of arbitration parties, to make the procedure more flexible, so as to meet the requirements of modern commerce development."
The remark was made by Wang Shengchang, vice-chairman of the China International Economic and Trade Arbitration Commission (CIETAC), in an interview with China Daily yesterday.
A team of experts at CIETAC are carrying out all the necessary preparatory work to revise the eight-year-old law.
Their research findings will be passed on to the NPC Standing Committee, the national law-making body, Wang said.
Meanwhile, CIETAC will also be working out some special procedural rules to ensure the fair and efficient settlement of disputes, especially in a way that is less time consuming. But Wang declined to elaborate on the rules that are still being drawn up.
The Arbitration Law was enacted by the NPC Standing Committee in 1994 and came into effect in 1995.
Some provisions of the law are outdated even though they all played an important role in the course of the development of arbitration services in China, Wang noted.
For example, he said, the law stipulates that all arbitration should be institutional arbitration and does not recognize ad hoc arbitration.
"But now we should have ad hoc arbitration, because it's a very popular method in the world and can offer greater choice to parties involved," said Wang, who is also director of the Legal Affairs Department of the China Council for the Promotion of International Trade.
Wang said the rule, under which parties have to choose arbitrators from a list, has left out the possibility of other experts offering their services.
He further contended that the law should be more flexible towards the validity of arbitration agreements.
In their current practice, Chinese courts tend to overrule the validity of arbitration agreements for some minor defects, Wang said. But they should instead follow the international practice and adopt a policy in favour of the validity of arbitration agreements.
Wang said he and his colleagues are expecting the proposed revisions to be approved in 2005, the 10th year when the existing Arbitration Law is in place.
In order to strengthen its hard-won prestige in the world, the CIETAC will embark on a large-scale effort this year to train arbitrators and to enlist experts from other professional fields to join its arbitration panel, Wang said.
CIETAC will provide continuing education to its 518 arbitrators while soliciting expertise from such industries as construction, financial and securities services, and information technologies.
Last year, CIETAC handled 468 arbitration requests involving overseas parties and another 216 domestic requests. All these cases involved a total of 11.3 billion yuan (US$1.4 billion) under disputes.
Wang attributed CIETAC's success to its adherence to institutional independence and impartiality in its practice.
Around one-third of CIETAC's 518 arbitrators come from more than 20 countries or regions including the US, UK, Japan, Sweden, Singapore and Hong Kong.
2003-02-11
China Daily
A plan is underway to revise the Arbitration Law to make China more business-friendly and more amicable for arbitration seekers.
"The present Arbitration Law needs changing to protect the autonomy of arbitration parties, to make the procedure more flexible, so as to meet the requirements of modern commerce development."
The remark was made by Wang Shengchang, vice-chairman of the China International Economic and Trade Arbitration Commission (CIETAC), in an interview with China Daily yesterday.
A team of experts at CIETAC are carrying out all the necessary preparatory work to revise the eight-year-old law.
Their research findings will be passed on to the NPC Standing Committee, the national law-making body, Wang said.
Meanwhile, CIETAC will also be working out some special procedural rules to ensure the fair and efficient settlement of disputes, especially in a way that is less time consuming. But Wang declined to elaborate on the rules that are still being drawn up.
The Arbitration Law was enacted by the NPC Standing Committee in 1994 and came into effect in 1995.
Some provisions of the law are outdated even though they all played an important role in the course of the development of arbitration services in China, Wang noted.
For example, he said, the law stipulates that all arbitration should be institutional arbitration and does not recognize ad hoc arbitration.
"But now we should have ad hoc arbitration, because it's a very popular method in the world and can offer greater choice to parties involved," said Wang, who is also director of the Legal Affairs Department of the China Council for the Promotion of International Trade.
Wang said the rule, under which parties have to choose arbitrators from a list, has left out the possibility of other experts offering their services.
He further contended that the law should be more flexible towards the validity of arbitration agreements.
In their current practice, Chinese courts tend to overrule the validity of arbitration agreements for some minor defects, Wang said. But they should instead follow the international practice and adopt a policy in favour of the validity of arbitration agreements.
Wang said he and his colleagues are expecting the proposed revisions to be approved in 2005, the 10th year when the existing Arbitration Law is in place.
In order to strengthen its hard-won prestige in the world, the CIETAC will embark on a large-scale effort this year to train arbitrators and to enlist experts from other professional fields to join its arbitration panel, Wang said.
CIETAC will provide continuing education to its 518 arbitrators while soliciting expertise from such industries as construction, financial and securities services, and information technologies.
Last year, CIETAC handled 468 arbitration requests involving overseas parties and another 216 domestic requests. All these cases involved a total of 11.3 billion yuan (US$1.4 billion) under disputes.
Wang attributed CIETAC's success to its adherence to institutional independence and impartiality in its practice.
Around one-third of CIETAC's 518 arbitrators come from more than 20 countries or regions including the US, UK, Japan, Sweden, Singapore and Hong Kong.
option
optionProtecting private property rights
2003-02-20
China Daily
The Ninth National People's Congress (NPC) has made legislative history by giving unprecedented protection to private property.
The 1999 amendment to the country's Constitution upgraded the non-State economy from a "complement to the State-owned economy" to "an important constituting part" of the socialist market economy.
The amendment, approved by the plenary meeting of the Ninth NPC, has been widely regarded as a milestone in the promotion of private enterprise in China.
It has not only clarified the nation's stance of protecting private property but also encouraged the development of the private sector.
Private enterprises are defined as private businesses employing more than eight people. Those with fewer than eight employees fall into the category of individual businesses in China.
The nation now has more than 1.7 million privately run domestic enterprises representing a total investment of 1.1 trillion yuan (US$132.85 billion) and a labour force of 27 million, statistics reveal.
"The better private property is protected, the greater the contribution the private sector will make to the national economy," said Bao Yujun, chairman of the Beijing-based Institution on the Promotion of Private Economy.
"The sense of security, in both economic and political terms, will still the qualms of investors and encourage them to expand their businesses."
The top legislature's efforts to step up protection was consolidated at the end of last year when the draft of the nation's first civil code was submitted to the NPC Standing Committee for preliminary reading.
The civil code, currently under legislative scrutiny, is expected to offer more comprehensive protection of private property.
"The civil code will play a vital role in promoting the national economy, maintaining social stability and safeguarding people's lives," said Wang Shengming, director of the Civil Legislation Office with the Legal Affairs Commission of the NPC Standing Committee.
The civil legislation affects both the daily life of individuals and the operation of corporations.
It regulates almost every activity that a corporation may undertake, such as trade, leasing, transportation, storage, fund-raising, settlement and the development of new products.
It also offers guidelines for individuals on the basic necessities of life - food, clothing, shelter and transportation - as well as recreation, marriage and family, among other activities.
The civil code, which promotes equality, fairness and good faith, offers more comprehensive protection of private property by introducing a volume of tangible property law.
In the draft code, a whole chapter has been devoted to the protection of private property.
The main purpose of the property rights law is to define and specify rights of possession in China. It is a crucial part of civil legislation.
Only when the right of possession is guaranteed can investors feel confident when investing, said Wang Liming, a civil law professor with the Law School of the Beijing-based Renmin University of China.
The draft civil code has also stipulated the right of individuals and corporations to mine, prospect, fish and use water.
2003-02-20
China Daily
The Ninth National People's Congress (NPC) has made legislative history by giving unprecedented protection to private property.
The 1999 amendment to the country's Constitution upgraded the non-State economy from a "complement to the State-owned economy" to "an important constituting part" of the socialist market economy.
The amendment, approved by the plenary meeting of the Ninth NPC, has been widely regarded as a milestone in the promotion of private enterprise in China.
It has not only clarified the nation's stance of protecting private property but also encouraged the development of the private sector.
Private enterprises are defined as private businesses employing more than eight people. Those with fewer than eight employees fall into the category of individual businesses in China.
The nation now has more than 1.7 million privately run domestic enterprises representing a total investment of 1.1 trillion yuan (US$132.85 billion) and a labour force of 27 million, statistics reveal.
"The better private property is protected, the greater the contribution the private sector will make to the national economy," said Bao Yujun, chairman of the Beijing-based Institution on the Promotion of Private Economy.
"The sense of security, in both economic and political terms, will still the qualms of investors and encourage them to expand their businesses."
The top legislature's efforts to step up protection was consolidated at the end of last year when the draft of the nation's first civil code was submitted to the NPC Standing Committee for preliminary reading.
The civil code, currently under legislative scrutiny, is expected to offer more comprehensive protection of private property.
"The civil code will play a vital role in promoting the national economy, maintaining social stability and safeguarding people's lives," said Wang Shengming, director of the Civil Legislation Office with the Legal Affairs Commission of the NPC Standing Committee.
The civil legislation affects both the daily life of individuals and the operation of corporations.
It regulates almost every activity that a corporation may undertake, such as trade, leasing, transportation, storage, fund-raising, settlement and the development of new products.
It also offers guidelines for individuals on the basic necessities of life - food, clothing, shelter and transportation - as well as recreation, marriage and family, among other activities.
The civil code, which promotes equality, fairness and good faith, offers more comprehensive protection of private property by introducing a volume of tangible property law.
In the draft code, a whole chapter has been devoted to the protection of private property.
The main purpose of the property rights law is to define and specify rights of possession in China. It is a crucial part of civil legislation.
Only when the right of possession is guaranteed can investors feel confident when investing, said Wang Liming, a civil law professor with the Law School of the Beijing-based Renmin University of China.
The draft civil code has also stipulated the right of individuals and corporations to mine, prospect, fish and use water.
option
optionBankruptcy laws need review
2003-03-17
China Daily
The country is in urgent need of a new bankruptcy law to ensure that failed non-State-owned enterprises can, where viable, continue to trade and also to better protect the interests of their creditors.
Wang Liming, a leading civil law professor with Renmin University of China, made the appeal to the first session of the 10th National People's Congress (NPC).
"The market economy is a competitive one in which enterprises must follow the rule that the fittest survives fierce competition," said Wang, who is also an NPC deputy.
He said a sound bankruptcy mechanism will encourage those enterprises concerned to try and survive and develop in the face of competition.
The Standing Committee of the Sixth NPC adopted a bankruptcy law for trial implementation in 1986, when China's economic reform was still in its infancy. The law only applies to State-owned enterprises.
However, a variety of businesses have emerged in the past two decades as reforms have deepened, including Chinese-foreign equity joint ventures, Chinese-foreign co-operative joint ventures and domestic or foreign solely invested corporations.
Currently, any bankruptcy concerning these newly emerged enterprises does not fall within the remit of any specific legal powers, Wang said.
He further complained that the current legislation lacks many basic and important rules for bankruptcy.
For example, it does not make any specific provision concerning the restructure of the firm concerned, a measure which could effectively help those large or medium-sized companies on the brink of bankruptcy to survive, said Wang.
He added that the incomplete stipulation concerning the liability of bankrupt firms allows debtors to abuse the existing bankruptcy mechanism by transferring their assets to avoid payment of their debts to the detriment of their creditors' interests.
"The nation should work out a new law with a sound bankruptcy mechanism especially since its accession to the World Trade Organization," Wang said.
2003-03-17
China Daily
The country is in urgent need of a new bankruptcy law to ensure that failed non-State-owned enterprises can, where viable, continue to trade and also to better protect the interests of their creditors.
Wang Liming, a leading civil law professor with Renmin University of China, made the appeal to the first session of the 10th National People's Congress (NPC).
"The market economy is a competitive one in which enterprises must follow the rule that the fittest survives fierce competition," said Wang, who is also an NPC deputy.
He said a sound bankruptcy mechanism will encourage those enterprises concerned to try and survive and develop in the face of competition.
The Standing Committee of the Sixth NPC adopted a bankruptcy law for trial implementation in 1986, when China's economic reform was still in its infancy. The law only applies to State-owned enterprises.
However, a variety of businesses have emerged in the past two decades as reforms have deepened, including Chinese-foreign equity joint ventures, Chinese-foreign co-operative joint ventures and domestic or foreign solely invested corporations.
Currently, any bankruptcy concerning these newly emerged enterprises does not fall within the remit of any specific legal powers, Wang said.
He further complained that the current legislation lacks many basic and important rules for bankruptcy.
For example, it does not make any specific provision concerning the restructure of the firm concerned, a measure which could effectively help those large or medium-sized companies on the brink of bankruptcy to survive, said Wang.
He added that the incomplete stipulation concerning the liability of bankrupt firms allows debtors to abuse the existing bankruptcy mechanism by transferring their assets to avoid payment of their debts to the detriment of their creditors' interests.
"The nation should work out a new law with a sound bankruptcy mechanism especially since its accession to the World Trade Organization," Wang said.
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optionLawyers: Victims deserve more
2003-06-23
China Daily
Legal experts in China have called for the amendment of the nine-year-old Law on State Compensation to guarantee that victims of State infringement actions will be reimbursed for losses.
"The standards set for compensation are too low and are basically compensative instead of punitive," said Ma Huaide, law professor with the Beijing-based China University of Political Science and Law.
The current law, adopted in 1994 and taking effect the following year, only compensates direct losses, including medical fees and loss of earnings during a certain period of time for victims.
When a death occurs due to the illegal activities of a State department, the victim can be compensated a maximum of 20 times the annual average State salary.
Insiders told China Daily that law-makers were not sure how much money would be needed for the payment of compensation claims a decade ago. They worried the expense would be too much of a burden on national coffers.
Ma said it is now widely accepted that "direct losses" should include all unavoidable losses of forecast profits.
Yuan Shuhong, professor with the National School of Administration, said it is important the law has clauses that judicial departments, such as the police, should pay punitive compensation for losses caused by their intentional or major malfeasance.
"State compensation should on the one hand provide a judicial remedy to victims so their rights are protected and on the other hand stop administrative and law enforcement departments from abusing power and engaging in illegal actions," said Yuan.
Statistics from the Supreme People's Court reveal courts across the country handled nearly 9,400 cases of State compensation in the five years between 1996 and 2002. Victims' 36 per cent of these cases won compensation.
"Actually an infringement by a State department leaves deeper and more lasting damage on the minds of victims than infringements by any individual," Ma said, calling for the inclusion of compensation for psychological damage into the law.
It is only in recent years that Chinese legislators and courts have started to consider compensation for mental damage. The Supreme People's Court issued a judicial interpretation in 2001, saying courts can support victims in demanding money for mental damage.
But Ma said a law for compensation cases that are divided into two categories of criminal and administrative still did not exist.
According to the current law, mental damage can only be compensated through apology, restoration of reputation and clearing up of negative effects, noted Ma.
The issue of mental damage in State compensation cases was hotly debated two years ago when Ma Dandan, a beauty salon worker in Northwest China's Shaanxi Province, was illegally interrogated for 23 hours and then wrongly detained for 15 days on charges of prostitution. She asked for compensation of 5 million yuan (US$60,000). She was turned down by a local court and received a tiny compensation of only 74.66 yuan (US$9).
"There is an obvious increase in the awareness of this channel of judicial remedy among the public," noted Ma. "But if the victims do not get the compensation to which they are entitled, their confidence in the system will be harmed."
2003-06-23
China Daily
Legal experts in China have called for the amendment of the nine-year-old Law on State Compensation to guarantee that victims of State infringement actions will be reimbursed for losses.
"The standards set for compensation are too low and are basically compensative instead of punitive," said Ma Huaide, law professor with the Beijing-based China University of Political Science and Law.
The current law, adopted in 1994 and taking effect the following year, only compensates direct losses, including medical fees and loss of earnings during a certain period of time for victims.
When a death occurs due to the illegal activities of a State department, the victim can be compensated a maximum of 20 times the annual average State salary.
Insiders told China Daily that law-makers were not sure how much money would be needed for the payment of compensation claims a decade ago. They worried the expense would be too much of a burden on national coffers.
Ma said it is now widely accepted that "direct losses" should include all unavoidable losses of forecast profits.
Yuan Shuhong, professor with the National School of Administration, said it is important the law has clauses that judicial departments, such as the police, should pay punitive compensation for losses caused by their intentional or major malfeasance.
"State compensation should on the one hand provide a judicial remedy to victims so their rights are protected and on the other hand stop administrative and law enforcement departments from abusing power and engaging in illegal actions," said Yuan.
Statistics from the Supreme People's Court reveal courts across the country handled nearly 9,400 cases of State compensation in the five years between 1996 and 2002. Victims' 36 per cent of these cases won compensation.
"Actually an infringement by a State department leaves deeper and more lasting damage on the minds of victims than infringements by any individual," Ma said, calling for the inclusion of compensation for psychological damage into the law.
It is only in recent years that Chinese legislators and courts have started to consider compensation for mental damage. The Supreme People's Court issued a judicial interpretation in 2001, saying courts can support victims in demanding money for mental damage.
But Ma said a law for compensation cases that are divided into two categories of criminal and administrative still did not exist.
According to the current law, mental damage can only be compensated through apology, restoration of reputation and clearing up of negative effects, noted Ma.
The issue of mental damage in State compensation cases was hotly debated two years ago when Ma Dandan, a beauty salon worker in Northwest China's Shaanxi Province, was illegally interrogated for 23 hours and then wrongly detained for 15 days on charges of prostitution. She asked for compensation of 5 million yuan (US$60,000). She was turned down by a local court and received a tiny compensation of only 74.66 yuan (US$9).
"There is an obvious increase in the awareness of this channel of judicial remedy among the public," noted Ma. "But if the victims do not get the compensation to which they are entitled, their confidence in the system will be harmed."
option
optionPersonal details need protection
2003-06-27
China Daily
The fourth draft of the law on citizens' identity cards is being examined at the ongoing session of the Standing Committee of the 10th Chinese National People's Congress, which started on Monday.
One of the most conspicuous differences between this and previous drafts is the addition of clauses protecting citizens' personal information.
The latest draft states that public security authorities should keep secret personal information on citizens that they have collected while producing, issuing, checking and detaining their identity cards. Leaking such information will constitute an infringement of citizens' rights and result in legal action. Serious violations might even result in criminal prosecution.
Personal information was scarcely a concern in the old days, when collective interests overwhelmed individual rights.
The draft law's inclusion of a guarantee on citizens' privacy is a fresh hallmark of the State's recognition of civic rights.
The right to privacy has also been written into the section on personal rights in the country's first draft civil code, which is also now under review.
But there is still a long way to go before individual rights are fully protected.
People are sometimes asked to give out personal information, only to find it has been leaked for commercial use without their consent.
We receive junk mail specifically addressed to us. Strange sales staff approach us, already familiar with our personal details. Our lives have been disrupted by all these unpleasant and sometimes unbearable intrusions.
Some government offices and institutions also show little respect for people's privacy. The personal data they have collected while performing their official duties are casually disclosed or even intentionally sold.
Accurate information is essential in many cases for public welfare. That is partly why we are asked to co-operate on more and more occasions. But people's increasing reluctance to share personal information with the authorities reflects their doubts over the authorities' inclination to abuse their trust.
This has a lot to do with the absence of legal liability on the official side. As long as we have to share some of our personal information, the government and its officials should be placed under a legal obligation to safeguard our privacy.
The new draft law is only a welcome first step awaiting extensive follow-up action, given the widespread lack of guarantees over personal information in our society.
2003-06-27
China Daily
The fourth draft of the law on citizens' identity cards is being examined at the ongoing session of the Standing Committee of the 10th Chinese National People's Congress, which started on Monday.
One of the most conspicuous differences between this and previous drafts is the addition of clauses protecting citizens' personal information.
The latest draft states that public security authorities should keep secret personal information on citizens that they have collected while producing, issuing, checking and detaining their identity cards. Leaking such information will constitute an infringement of citizens' rights and result in legal action. Serious violations might even result in criminal prosecution.
Personal information was scarcely a concern in the old days, when collective interests overwhelmed individual rights.
The draft law's inclusion of a guarantee on citizens' privacy is a fresh hallmark of the State's recognition of civic rights.
The right to privacy has also been written into the section on personal rights in the country's first draft civil code, which is also now under review.
But there is still a long way to go before individual rights are fully protected.
People are sometimes asked to give out personal information, only to find it has been leaked for commercial use without their consent.
We receive junk mail specifically addressed to us. Strange sales staff approach us, already familiar with our personal details. Our lives have been disrupted by all these unpleasant and sometimes unbearable intrusions.
Some government offices and institutions also show little respect for people's privacy. The personal data they have collected while performing their official duties are casually disclosed or even intentionally sold.
Accurate information is essential in many cases for public welfare. That is partly why we are asked to co-operate on more and more occasions. But people's increasing reluctance to share personal information with the authorities reflects their doubts over the authorities' inclination to abuse their trust.
This has a lot to do with the absence of legal liability on the official side. As long as we have to share some of our personal information, the government and its officials should be placed under a legal obligation to safeguard our privacy.
The new draft law is only a welcome first step awaiting extensive follow-up action, given the widespread lack of guarantees over personal information in our society.
option
optionArguments against harassment law groundless
2003-07-11
China Daily
The recent batch of sexual harassment cases in the country has fuelled debate over whether or not it is the right time to legislate on the matter.
While the voices demanding such a law are loud, some have expressed a worry about the possible negative effects brought about by a special policy.
In a Beijing local newspaper, some psychologists warned recently that such legislation is likely to cause uneasiness in people's social contacts.
Street interviews by the newspaper seemed to support the view. Some male respondents showed similar malaise with the suggested law. Such a law, they claimed, would "make me uncomfortable" since "I can no longer freely joke around with my female colleagues."
In other instances, some law experts raised concerns that the legislation may make companies reluctant to recruit female employees, for fear of potential trouble in the workplace.
These worries do make sense, but should not be cited as excuses to block the law that is being petitioned for. If the legislation is really pushed through, it is only natural that at the beginning people may feel restricted in their social interactions. The fears will be dispelled with better knowledge of the law.
An anti-harassment law is by no means aimed to interfere with the normal contacts between men and women, but rather prevent offensive words or actions, which have resulted in serious harm for the victims in these cases.
The complaint for not being able to speak freely with female colleagues deserves no sympathy. Some of that type of banter, while the males involved may not realize it yet, has already made their female peers feel humiliated and offended. A reminder to mind their manners is exactly the purpose of such a law.
The worry for the possible influence on women's employment is groundless. The country has no lack of rules and regulations to ensure equal employment opportunities for men and women. If necessary, harsher measures can be introduced to tackle problems that may emerge later.
A civilized society will not tolerate an assault on the dignity of its workers. Sexual harassment has evolved into a problem that society can no longer neglect, with women in most cases becoming victims.
A survey jointly conducted last year by Beijing Youth Daily and the Datasea Company suggested that 71 per cent of the women polled have at one time or another encountered sexual harassment in various forms, and that 93 per cent regarded it necessary to make a law against such injustices.
While special legislation has not been put on the agenda, relevant stipulations against sexual harassment will be added to the Law on the Protection of Women's Rights and Interests, which is under implementation.
Debates on the topic are going on. Different opinions are welcome. At a time when sexual harassment has become such a serious social problem, an exaggeration on the so-called side effects can be misleading.
2003-07-11
China Daily
The recent batch of sexual harassment cases in the country has fuelled debate over whether or not it is the right time to legislate on the matter.
While the voices demanding such a law are loud, some have expressed a worry about the possible negative effects brought about by a special policy.
In a Beijing local newspaper, some psychologists warned recently that such legislation is likely to cause uneasiness in people's social contacts.
Street interviews by the newspaper seemed to support the view. Some male respondents showed similar malaise with the suggested law. Such a law, they claimed, would "make me uncomfortable" since "I can no longer freely joke around with my female colleagues."
In other instances, some law experts raised concerns that the legislation may make companies reluctant to recruit female employees, for fear of potential trouble in the workplace.
These worries do make sense, but should not be cited as excuses to block the law that is being petitioned for. If the legislation is really pushed through, it is only natural that at the beginning people may feel restricted in their social interactions. The fears will be dispelled with better knowledge of the law.
An anti-harassment law is by no means aimed to interfere with the normal contacts between men and women, but rather prevent offensive words or actions, which have resulted in serious harm for the victims in these cases.
The complaint for not being able to speak freely with female colleagues deserves no sympathy. Some of that type of banter, while the males involved may not realize it yet, has already made their female peers feel humiliated and offended. A reminder to mind their manners is exactly the purpose of such a law.
The worry for the possible influence on women's employment is groundless. The country has no lack of rules and regulations to ensure equal employment opportunities for men and women. If necessary, harsher measures can be introduced to tackle problems that may emerge later.
A civilized society will not tolerate an assault on the dignity of its workers. Sexual harassment has evolved into a problem that society can no longer neglect, with women in most cases becoming victims.
A survey jointly conducted last year by Beijing Youth Daily and the Datasea Company suggested that 71 per cent of the women polled have at one time or another encountered sexual harassment in various forms, and that 93 per cent regarded it necessary to make a law against such injustices.
While special legislation has not been put on the agenda, relevant stipulations against sexual harassment will be added to the Law on the Protection of Women's Rights and Interests, which is under implementation.
Debates on the topic are going on. Different opinions are welcome. At a time when sexual harassment has become such a serious social problem, an exaggeration on the so-called side effects can be misleading.
option
optionJudiciary sets itself for battle
2003-08-26
China Daily
Supreme People's Court President Xiao Yang's latest call for justice and efficiency demonstrates his resolve to improve the current judicial practices.
At a meeting of high court presidents on Sunday, the top justice urged judges nationwide to wrap up all long-standing unresolved cases by November.
Aiming to build "judicature for the people," the Supreme People's Court will also introduce a series of measures later this year to regulate judges' performances, make sure litigants are better informed and tighten up the enforcement of court rulings, Xiao said.
The new measures are likely to help make the judicial authority's work more efficiently.
Hearing over 6 million cases a year, the court system is often criticized for its poor efficiency and unjust judgments that occur at times.
The tardy work of many courts has led to unbearable costs in terms of time and money for litigants and worse still, prolonged custody of suspects in criminal cases.
Despite the constant progress the judicial authority is making, the performance of some local courts remains poor often because of corruption or a lack of proficiency.
Xiao's deadline to sort out long-standing cases reflects a resolve of self-discipline.
However, how far Xiao's reform can go will to some extent hinge on the court's handling of interference from local powers over trials and enforcement, which leads to criticism from the public.
One encouraging sign is that there are gradually more ways to rein in power in line with the top leadership's promise to use authority for the people and to have a greater respect for the law.
As administrative departments outline the limits of their power, the judicial authority's aggressive move to better perform its role is well slated.
A sound execution of judicial power will advance the country's cultivation of the rule of law.
2003-08-26
China Daily
Supreme People's Court President Xiao Yang's latest call for justice and efficiency demonstrates his resolve to improve the current judicial practices.
At a meeting of high court presidents on Sunday, the top justice urged judges nationwide to wrap up all long-standing unresolved cases by November.
Aiming to build "judicature for the people," the Supreme People's Court will also introduce a series of measures later this year to regulate judges' performances, make sure litigants are better informed and tighten up the enforcement of court rulings, Xiao said.
The new measures are likely to help make the judicial authority's work more efficiently.
Hearing over 6 million cases a year, the court system is often criticized for its poor efficiency and unjust judgments that occur at times.
The tardy work of many courts has led to unbearable costs in terms of time and money for litigants and worse still, prolonged custody of suspects in criminal cases.
Despite the constant progress the judicial authority is making, the performance of some local courts remains poor often because of corruption or a lack of proficiency.
Xiao's deadline to sort out long-standing cases reflects a resolve of self-discipline.
However, how far Xiao's reform can go will to some extent hinge on the court's handling of interference from local powers over trials and enforcement, which leads to criticism from the public.
One encouraging sign is that there are gradually more ways to rein in power in line with the top leadership's promise to use authority for the people and to have a greater respect for the law.
As administrative departments outline the limits of their power, the judicial authority's aggressive move to better perform its role is well slated.
A sound execution of judicial power will advance the country's cultivation of the rule of law.
option
optionLaws should reflect market economy
2003-10-27
China Daily
Improving China's market economy related legal framework is a must for the maturity of the country's nascent mar-ket economy, according to a signed article in Beijing-based magazine China Newsweek.
Although a basic framework of market economy has been established in China thanks to relentless efforts over the past two decades, residues of the planned economy still linger and remain unsolved. The market economy framework is yet to be improved.
The third plenum of the 16th Central Committee of the Communist Party of China, which concluded early this month, thus made it an urgent task to accomplish a unified, open and orderly market system. Improvement of the economy-related law framework was stressed.
There is an imbalance between the development of China's market-driven economy and its civil and commercial legislation, according to Li Shuguang, author of the article.
Some key laws governing economic operation are still lacking, including laws regulating market entry, transaction and exit. Of those already in existence, many contradict each other or are poorly applicable, said Li, a professor from the China University of Politics and Law.
For example, the Company Law, adopted in late 1993, mainly targets State-owned enterprises. It can no longer cater to the needs of the times since it has some discriminative provisions, although in secretive forms, for non-State enterprises.
The Company Law should be revised to be more corporation-oriented, instead of State-oriented. It should lower the threshold for the market entry of private enterprises and lessen government regulations.
Laws concerning market transactions in China are the Contract Law, the Guarantee Law and the Securities Law. An anti-fraud transaction law should be drafted to complete the framework.
The revision of the Securities Law has been a focus of attention. Drafted in 1998, when Asia was haunted by financial crisis, the law concentrated more on regulation than warding off risks. However, many provisions are restrictive and forbidding principles with poor applicability.
The current divided financial operational mode should be adjusted in revising the securities law, Li said.
A mixed operational mode should be started to cater to the new circumstances and create room for further reforms of China's financial sector.
The article said that more detailed rules for securities transactions should be drafted. As well, bank capital should be allowed in the stock market and restrictions on financing and transactions by stock brokers should be eased on the basis of solid risk control.
The civil indemnity system should be stipulated in the law to protect the interests of investors from being abused. With such stipulations, the false statement, under-the-counter deals, market manipulation and malicious fraud currently plaguing the market could be stemmed. The court should also be allowed to get directly involved in cases of civil indemnity incurred in stock transactions.
Regarding market exit, the drafting of the Bankruptcy Law should be promptly completed. Hopefully it will come out soon since the Standing Committee of the National People's Congress has included it in this year's legislation plan, the article said.
Li suggested an independent national court system for bankruptcy cases be established. Those independent courts, under the direct administration of the Highest People's Court, would be free from intervention by local interests and would deal with cross-regional cases to protect the interests of creditors that may scatter across the country.
The article also calls for the drafting of an anti-monopoly law to regulate market order. It will be a basic law of the market economy environment.
China's transition from a planned economy to a market-driven one demands such a law to ensure fair competition in a monopoly-ridden market. Currently, monopoly is common in such industries as railway, telecommunications, banking and financial sector.
Meanwhile, a global merger wave has spilled over to this country. China needs such a law to push fair competition and protect the interests of consumers.
The article also proposed to change the name of current State Assets Law into the State Assets Management Law or Operational State Assets Management Law.
China has inherited a huge number of State assets, especially operational assets such as State enterprises, from the past planned economy. Because of blurred property rights and poor management, State assets losses have been a serious problem.
The loss of State assets is a rather complicated issue, and it is often difficult to untangle the relations between the involved parties.
In this condition, an overall State assets law that encompasses all aspects of the issue would be impossible, the article said. A more advisable choice is to streamline coverage of the law, making it more applicable and effective.
The new State assets management law should define the role of the newly-established State-owned Assets Supervision and Administration Commission. The rights, duties and accountability of the department should be clearly established.
The law should also define the proper relationship between the central State assets management body and its local counterparts.
Moreover, the transaction rules, pricing mechanism and transaction procedures of State assets should be clarified.
The applicability of the law should be especially stressed, the article said.
Proper supervisors should be empowered to counter State assets managers. When State assets losses or property rights disputes arise, the law should ensure they can be submitted to the court for resolution.
2003-10-27
China Daily
Improving China's market economy related legal framework is a must for the maturity of the country's nascent mar-ket economy, according to a signed article in Beijing-based magazine China Newsweek.
Although a basic framework of market economy has been established in China thanks to relentless efforts over the past two decades, residues of the planned economy still linger and remain unsolved. The market economy framework is yet to be improved.
The third plenum of the 16th Central Committee of the Communist Party of China, which concluded early this month, thus made it an urgent task to accomplish a unified, open and orderly market system. Improvement of the economy-related law framework was stressed.
There is an imbalance between the development of China's market-driven economy and its civil and commercial legislation, according to Li Shuguang, author of the article.
Some key laws governing economic operation are still lacking, including laws regulating market entry, transaction and exit. Of those already in existence, many contradict each other or are poorly applicable, said Li, a professor from the China University of Politics and Law.
For example, the Company Law, adopted in late 1993, mainly targets State-owned enterprises. It can no longer cater to the needs of the times since it has some discriminative provisions, although in secretive forms, for non-State enterprises.
The Company Law should be revised to be more corporation-oriented, instead of State-oriented. It should lower the threshold for the market entry of private enterprises and lessen government regulations.
Laws concerning market transactions in China are the Contract Law, the Guarantee Law and the Securities Law. An anti-fraud transaction law should be drafted to complete the framework.
The revision of the Securities Law has been a focus of attention. Drafted in 1998, when Asia was haunted by financial crisis, the law concentrated more on regulation than warding off risks. However, many provisions are restrictive and forbidding principles with poor applicability.
The current divided financial operational mode should be adjusted in revising the securities law, Li said.
A mixed operational mode should be started to cater to the new circumstances and create room for further reforms of China's financial sector.
The article said that more detailed rules for securities transactions should be drafted. As well, bank capital should be allowed in the stock market and restrictions on financing and transactions by stock brokers should be eased on the basis of solid risk control.
The civil indemnity system should be stipulated in the law to protect the interests of investors from being abused. With such stipulations, the false statement, under-the-counter deals, market manipulation and malicious fraud currently plaguing the market could be stemmed. The court should also be allowed to get directly involved in cases of civil indemnity incurred in stock transactions.
Regarding market exit, the drafting of the Bankruptcy Law should be promptly completed. Hopefully it will come out soon since the Standing Committee of the National People's Congress has included it in this year's legislation plan, the article said.
Li suggested an independent national court system for bankruptcy cases be established. Those independent courts, under the direct administration of the Highest People's Court, would be free from intervention by local interests and would deal with cross-regional cases to protect the interests of creditors that may scatter across the country.
The article also calls for the drafting of an anti-monopoly law to regulate market order. It will be a basic law of the market economy environment.
China's transition from a planned economy to a market-driven one demands such a law to ensure fair competition in a monopoly-ridden market. Currently, monopoly is common in such industries as railway, telecommunications, banking and financial sector.
Meanwhile, a global merger wave has spilled over to this country. China needs such a law to push fair competition and protect the interests of consumers.
The article also proposed to change the name of current State Assets Law into the State Assets Management Law or Operational State Assets Management Law.
China has inherited a huge number of State assets, especially operational assets such as State enterprises, from the past planned economy. Because of blurred property rights and poor management, State assets losses have been a serious problem.
The loss of State assets is a rather complicated issue, and it is often difficult to untangle the relations between the involved parties.
In this condition, an overall State assets law that encompasses all aspects of the issue would be impossible, the article said. A more advisable choice is to streamline coverage of the law, making it more applicable and effective.
The new State assets management law should define the role of the newly-established State-owned Assets Supervision and Administration Commission. The rights, duties and accountability of the department should be clearly established.
The law should also define the proper relationship between the central State assets management body and its local counterparts.
Moreover, the transaction rules, pricing mechanism and transaction procedures of State assets should be clarified.
The applicability of the law should be especially stressed, the article said.
Proper supervisors should be empowered to counter State assets managers. When State assets losses or property rights disputes arise, the law should ensure they can be submitted to the court for resolution.
option
optionProtect farmers' land use rights
2003-11-24
China Daily
The transfer of farmers' rights to use contracted land should be better regulated to protect their interests.
China's land system allows farmers to use land based on a land contract. The so-called household contract responsibility system that links farmers' income with output started in the 1980s.
China's law stipulates the land is owned by the State or collective units, for example, villages, but individuals can obtain the right to use it.
In recent years, as the pace of urbanization picks up, more and more farmland has been used for construction purposes.
The transfer of farmers' rights of land use is now in the spotlight.
The 16th National Congress of the Communist Party of China (CPC) last November and the Third Plenum of the 16th CPC Central Committee in early October this year both said land use right transfers should be conducted legally and voluntarily. Farmers must be properly compensated for the transfers.
If handled well, such transfers will help the country urbanize and address the troublesome problem of redundant rural labourers.
However, if not properly dealt with, they may jeopardize the interests of farmers.
Many factors in the transfer of land use rights can hurt farmers' interests.
In the land market, the demand for land far exceeds supply. Many urban developers are desperately seeking plots of land for profitable construction projects but can find few that are designated for construction purposes.
Given the imbalance, the collectives in rural areas - for example, a village committee, the de facto owner of farmers' land - may force farmers to agree to transfer their rights if there is little supervision from a third party. Those collectives could profit greatly from such deals.
The State has the power to regulate land use, as stipulated in the amended Law of Land Administration passed in 1998.
It allows for State requisition of land from collective ownership.
After the resumed land is sold for real estate or other urban construction projects at a high price, most of the returns are poured into urban areas while only a small part goes to rural regions.
Companies that deal with farm produce processing, storage and sales are an important force pushing forward the development of agriculture. But while they seek co-operation with individual farmers, they can pressure some, who have little bargaining power, to transfer their land use rights.
If these companies take advantage of policy loopholes to use the land for urban, rather than rural, development, farmers may be forced off their land. This has happened in some places.
Our land registry needs to be made more comprehensive.
The land use registry provides formal State recognition of farmers' land use rights. It can play a vital role in protecting such rights. But the State has not devised a registry system capable of dealing with changes to farmers' land use rights after their contracts expire.
To better protect farmers' interests, such a system should be promptly put in place.
Some local governments have experimented with different forms of registries.
Some give farmers land contract certificates and urge village committees to sign the agreements with farmers.
But they also need to deal systematically with the different certificates for different kinds of land, such as farmland, grassland and forest land.
By doing so, governments will not only secure farmers' land use contracts, but enhance awareness of their rights.
The country passed its Rural Land Contracting Law in late August 2002. It took effect on March 1.
This law has played an important part in protecting farm land and farmers' rights.
But more detailed implementation procedures should be drafted to make better use of the law.
The government's policies, such as requiring land use and requisition plans and granting land transaction approvals, should be made consistent and transparent. The implementation of the policies should put farmers on an equal footing with developers.
Procedures for land requisitions should also be clarified to rein in the wilful behaviour of some local governments. This will be achieved in amendments to the current land administration law.
Meanwhile, the standards for compensation for farmers' loss of land use rights should be adjusted to properly reflect market prices.
To prevent rural collective organizations, enterprises or individuals from encroaching upon farmers' land, the government must strengthen land use management, especially in some places where urbanization is unregulated and victimizes farmers.
The Ministry of Land and Resources has revealed that 140,254 cases involving land management malpractice were uncovered last year, a 12 per cent increase year on year.
And now there are more than 5,000 economic development zones nationwide, covering 30,000 square kilometres of land, much of which is farmland since the zones are generally located in suburban areas.
This should sound alarm bells for policy-makers.
The author is a researcher with the Rural Development Institute of the Chinese Academy of Social Sciences. The article was originally published in the Beijing-based Chinese Rural Economy magazine.
2003-11-24
China Daily
The transfer of farmers' rights to use contracted land should be better regulated to protect their interests.
China's land system allows farmers to use land based on a land contract. The so-called household contract responsibility system that links farmers' income with output started in the 1980s.
China's law stipulates the land is owned by the State or collective units, for example, villages, but individuals can obtain the right to use it.
In recent years, as the pace of urbanization picks up, more and more farmland has been used for construction purposes.
The transfer of farmers' rights of land use is now in the spotlight.
The 16th National Congress of the Communist Party of China (CPC) last November and the Third Plenum of the 16th CPC Central Committee in early October this year both said land use right transfers should be conducted legally and voluntarily. Farmers must be properly compensated for the transfers.
If handled well, such transfers will help the country urbanize and address the troublesome problem of redundant rural labourers.
However, if not properly dealt with, they may jeopardize the interests of farmers.
Many factors in the transfer of land use rights can hurt farmers' interests.
In the land market, the demand for land far exceeds supply. Many urban developers are desperately seeking plots of land for profitable construction projects but can find few that are designated for construction purposes.
Given the imbalance, the collectives in rural areas - for example, a village committee, the de facto owner of farmers' land - may force farmers to agree to transfer their rights if there is little supervision from a third party. Those collectives could profit greatly from such deals.
The State has the power to regulate land use, as stipulated in the amended Law of Land Administration passed in 1998.
It allows for State requisition of land from collective ownership.
After the resumed land is sold for real estate or other urban construction projects at a high price, most of the returns are poured into urban areas while only a small part goes to rural regions.
Companies that deal with farm produce processing, storage and sales are an important force pushing forward the development of agriculture. But while they seek co-operation with individual farmers, they can pressure some, who have little bargaining power, to transfer their land use rights.
If these companies take advantage of policy loopholes to use the land for urban, rather than rural, development, farmers may be forced off their land. This has happened in some places.
Our land registry needs to be made more comprehensive.
The land use registry provides formal State recognition of farmers' land use rights. It can play a vital role in protecting such rights. But the State has not devised a registry system capable of dealing with changes to farmers' land use rights after their contracts expire.
To better protect farmers' interests, such a system should be promptly put in place.
Some local governments have experimented with different forms of registries.
Some give farmers land contract certificates and urge village committees to sign the agreements with farmers.
But they also need to deal systematically with the different certificates for different kinds of land, such as farmland, grassland and forest land.
By doing so, governments will not only secure farmers' land use contracts, but enhance awareness of their rights.
The country passed its Rural Land Contracting Law in late August 2002. It took effect on March 1.
This law has played an important part in protecting farm land and farmers' rights.
But more detailed implementation procedures should be drafted to make better use of the law.
The government's policies, such as requiring land use and requisition plans and granting land transaction approvals, should be made consistent and transparent. The implementation of the policies should put farmers on an equal footing with developers.
Procedures for land requisitions should also be clarified to rein in the wilful behaviour of some local governments. This will be achieved in amendments to the current land administration law.
Meanwhile, the standards for compensation for farmers' loss of land use rights should be adjusted to properly reflect market prices.
To prevent rural collective organizations, enterprises or individuals from encroaching upon farmers' land, the government must strengthen land use management, especially in some places where urbanization is unregulated and victimizes farmers.
The Ministry of Land and Resources has revealed that 140,254 cases involving land management malpractice were uncovered last year, a 12 per cent increase year on year.
And now there are more than 5,000 economic development zones nationwide, covering 30,000 square kilometres of land, much of which is farmland since the zones are generally located in suburban areas.
This should sound alarm bells for policy-makers.
The author is a researcher with the Rural Development Institute of the Chinese Academy of Social Sciences. The article was originally published in the Beijing-based Chinese Rural Economy magazine.
option
optionExperts: Laws must specify rights
2004-03-31
China Daily
China's new amendment to the Constitution, which highlights the protection of individuals' rights, needs more specific legislation to support the concepts it outlines, legal and economic scholars say.
Additional legislative efforts are needed to translate the Constitution from "a law on paper" into concrete guarantees of individuals' rights, said Hu Jinguang, a law professor at the Renmin University of China.
The 10th National People's Congress (NPC), the country's top legislative body, adopted the fourth amendment to the 1982 Constitution at its annual meeting earlier this month.
The Constitution was previously amended in 1988, 1993 and 1999.
The amendment stipulates that citizens' lawful private property is inviolable, putting private assets on an equal footing with public property.
Under the provisions of the amendment, the nation can in some circumstances, expropriate private property in accordance with the law when the public interest will be served. But it must compensate citizens for the expropriation, the amendment states.
In more general terms, the amendment says the country respects and preserves the overarching concept of human rights for the first time within the Constitution, although Chinese law has always safeguarded the rights of individuals.
"Individuals are the primary beneficiaries of such a stipulation since they gain the right to oppose arbitrary interference by the government into their private lives or property," said Mo Jihong, a researcher at the Institute of Legal Studies under the Chinese Academy of Social Sciences (CASS).
"All government and judicial bodies should increase their awareness of protecting private property now that the Constitution has been amended," Mo said.
Zhou Wangsheng, a professor of law with the Centre for Legislation at Peking University, said the constitutional amendment is major social progress.
"It not only reflects the fruits of domestic economic reform but tallies with trends in international economic integration and global constitutional developments," Zhou said.
But he said the constitutional amendment is just a prelude to further legislation that is needed.
"More specific legislation, including a separate law on the protection of private property, is needed to support the constitutional stipulation," Zhou said.
Mo said the draft law on tangible property rights, which is expected to be reviewed by the national lawmakers this year, will clearly define the rights individuals hold on their belongings and the nature of these rights.
The draft civil code, which was preliminarily reviewed by the NPC Standing Committee in 2002, also specifies these rights, Mo said, adding that both pieces of legislation will offer the legal basis for individuals to exercise their rights.
Zhang Houyi, a researcher at the Institute of Social Studies under the social science academy, said more emphasis should be put on the protection of common people especially the poor and disadvantaged, referring to the grievously postponed payments of salaries of farmers-turned workers.
The constitutional amendment also replaces the term "martial law" by the term "state of emergency," paving the way for legislation on states of emergency conditions.
National legislators are expected to review a draft law on states of emergency at the end of this year.
Emergency usually refers to an unforeseen combination of circumstances or a resulting state that calls for immediate action to maintain public order and ensure the safety of people's lives and property.
Extraordinary measures usually involve restrictions on citizens' rights and freedoms to varying extents.
The draft bill on states of emergency will ensure that the country is ruled by law even under emergency circumstances, said Yu An, a professor of administrative law with the School of Public Policy and Management of Tsinghua University, who participated in writing the draft bill.
Yu said the proposal will set an upper limit for state power and a floor level for the citizens' rights at the same time, forcing the government to take rational and restricted measures in the states of emergency.
2004-03-31
China Daily
China's new amendment to the Constitution, which highlights the protection of individuals' rights, needs more specific legislation to support the concepts it outlines, legal and economic scholars say.
Additional legislative efforts are needed to translate the Constitution from "a law on paper" into concrete guarantees of individuals' rights, said Hu Jinguang, a law professor at the Renmin University of China.
The 10th National People's Congress (NPC), the country's top legislative body, adopted the fourth amendment to the 1982 Constitution at its annual meeting earlier this month.
The Constitution was previously amended in 1988, 1993 and 1999.
The amendment stipulates that citizens' lawful private property is inviolable, putting private assets on an equal footing with public property.
Under the provisions of the amendment, the nation can in some circumstances, expropriate private property in accordance with the law when the public interest will be served. But it must compensate citizens for the expropriation, the amendment states.
In more general terms, the amendment says the country respects and preserves the overarching concept of human rights for the first time within the Constitution, although Chinese law has always safeguarded the rights of individuals.
"Individuals are the primary beneficiaries of such a stipulation since they gain the right to oppose arbitrary interference by the government into their private lives or property," said Mo Jihong, a researcher at the Institute of Legal Studies under the Chinese Academy of Social Sciences (CASS).
"All government and judicial bodies should increase their awareness of protecting private property now that the Constitution has been amended," Mo said.
Zhou Wangsheng, a professor of law with the Centre for Legislation at Peking University, said the constitutional amendment is major social progress.
"It not only reflects the fruits of domestic economic reform but tallies with trends in international economic integration and global constitutional developments," Zhou said.
But he said the constitutional amendment is just a prelude to further legislation that is needed.
"More specific legislation, including a separate law on the protection of private property, is needed to support the constitutional stipulation," Zhou said.
Mo said the draft law on tangible property rights, which is expected to be reviewed by the national lawmakers this year, will clearly define the rights individuals hold on their belongings and the nature of these rights.
The draft civil code, which was preliminarily reviewed by the NPC Standing Committee in 2002, also specifies these rights, Mo said, adding that both pieces of legislation will offer the legal basis for individuals to exercise their rights.
Zhang Houyi, a researcher at the Institute of Social Studies under the social science academy, said more emphasis should be put on the protection of common people especially the poor and disadvantaged, referring to the grievously postponed payments of salaries of farmers-turned workers.
The constitutional amendment also replaces the term "martial law" by the term "state of emergency," paving the way for legislation on states of emergency conditions.
National legislators are expected to review a draft law on states of emergency at the end of this year.
Emergency usually refers to an unforeseen combination of circumstances or a resulting state that calls for immediate action to maintain public order and ensure the safety of people's lives and property.
Extraordinary measures usually involve restrictions on citizens' rights and freedoms to varying extents.
The draft bill on states of emergency will ensure that the country is ruled by law even under emergency circumstances, said Yu An, a professor of administrative law with the School of Public Policy and Management of Tsinghua University, who participated in writing the draft bill.
Yu said the proposal will set an upper limit for state power and a floor level for the citizens' rights at the same time, forcing the government to take rational and restricted measures in the states of emergency.
option
optionCultural differences needs to be considered in commercial arbitration
2004-05-19
Xinhua
International commercial arbitration needs to consider culture differences, William Slate, chairman of the American Arbitration Association, said in Beijing Tuesday.
During the 17th conference of the International Council for Commercial Arbitration (ICCA), Slate said different clients from different countries and regions have different values, languages, religions and cultures and if these differences are not paid attention to, cultural biases would emerge in arbitration and effect its process and results.
Good understanding of cultural differences can not only bring fair results but also bring more cases to the arbitrator, he said.
Sally Harpole, governing council member of Hong Kong International Arbitration Center, said many trade disputes were brought by misunderstandings arising from different cultures, languages and business habits.
"Some disputes even occur at the very beginning when the two parties signed contracts and they didn't even notice," she said.
She held that the enterprises should learn to avoid raising disputes, such as setting up dispute management organizations. Arbitrators should also study the cultural background of the clients.
In fact, some organizations have already noticed the cultural impact on international commercial arbitration. A brochure of Coudert Brothers LLP, a long-standing pioneer in international law, stresses "most of the lawyers in its China branch speak Mandarin" to attract Chinese clients.
Slate said the reason that the Hong Kong Arbitration Center attracts both Chinese and western clients is that Hong Kong enjoys a Chinese culture and western legal system.
He said the arbitration circle should examine the subject more deeply for a better comprehension, engage in cross-cultural training for arbitrators.
The most important is that dialogues should not be limited in the arbitration circle. Economists, social scientists, linguists and business executives should be invited and by doing so arbitration can be strengthened and improved, Slate said.
The three-day ICCA conference was opened Sunday, with more than 400 economic and legal experts from 47 countries attending the meeting.
2004-05-19
Xinhua
International commercial arbitration needs to consider culture differences, William Slate, chairman of the American Arbitration Association, said in Beijing Tuesday.
During the 17th conference of the International Council for Commercial Arbitration (ICCA), Slate said different clients from different countries and regions have different values, languages, religions and cultures and if these differences are not paid attention to, cultural biases would emerge in arbitration and effect its process and results.
Good understanding of cultural differences can not only bring fair results but also bring more cases to the arbitrator, he said.
Sally Harpole, governing council member of Hong Kong International Arbitration Center, said many trade disputes were brought by misunderstandings arising from different cultures, languages and business habits.
"Some disputes even occur at the very beginning when the two parties signed contracts and they didn't even notice," she said.
She held that the enterprises should learn to avoid raising disputes, such as setting up dispute management organizations. Arbitrators should also study the cultural background of the clients.
In fact, some organizations have already noticed the cultural impact on international commercial arbitration. A brochure of Coudert Brothers LLP, a long-standing pioneer in international law, stresses "most of the lawyers in its China branch speak Mandarin" to attract Chinese clients.
Slate said the reason that the Hong Kong Arbitration Center attracts both Chinese and western clients is that Hong Kong enjoys a Chinese culture and western legal system.
He said the arbitration circle should examine the subject more deeply for a better comprehension, engage in cross-cultural training for arbitrators.
The most important is that dialogues should not be limited in the arbitration circle. Economists, social scientists, linguists and business executives should be invited and by doing so arbitration can be strengthened and improved, Slate said.
The three-day ICCA conference was opened Sunday, with more than 400 economic and legal experts from 47 countries attending the meeting.
option
optionProtecting trademarks in China
2004-08-11
China Business Weekly
China has been revising its trademark laws and regulations to bring them more in line with WTO (World Trade Organization) rules and to provide companies with a better business environment with regard to intellectual property protection.
The purpose of this article is to help US companies understand the ever-evolving procedures governing the registration and protection of trademarks in China.
Trademark administration bodies
China employs a centralized trademark registration system. The Trademark Office within the State Administration of Industry and Commerce (SAIC) (Trademark Office) is responsible for the registration and overall administration of trademarks.
The local counterparts of SAIC, the Administration of Industry and Commerce (AICs) have established trademark offices to handle trademark administration and enforcement at local levels.
The Trademark Review and Adjudication Board (TRAB) within SAIC is responsible for handling trademark registration disputes.
Registration
US company doing business in China should first ensure that its trademarks are properly registered in China.
All marks for goods, services, collective marks and certification marks (collectively referred to as "trademarks") can be registered, provided they meet the stipulated requirements for registration.
Although registration is highly recommended, it is not mandatory, except in the case of trademarks used on specific goods such as pharmaceutical and tobacco products, which must be sold bearing registered trademarks.
Foreign individuals or enterprises must use authorized local agents in seeking trademark registration and handling other trademark related matters.
China employs a "first-to-file" system for trademark registrations, rather than the "first-to-use" system generally adopted in the United States.
Since China and the United States are both members to the Paris Convention, a US company that has applied for registration of a trademark in the United States may be regarded as having applied for the same registration in China on the same date, provided the application in China is filed within six months of the US filing date.
China's requirements for obtaining a trademark registration are basically the same as those in most other countries; namely, the trademark must be distinctive, and must not conflict with an existing registration.
Many companies also seek trademark registration in China as a defensive measure, applying for registrations in as many categories of goods and/or services as is viable.
While most US companies tend to register trademarks on goods and/or services related directly to their businesses, they often discover that their trademarks are registered by others in categories in which they, themselves, do not think it necessary to register.
Defensive registrations waste resources, since a company may obtain registrations in categories having nothing to do with its existing businesses.
Such defensive registrations nevertheless effectively prevent any later applicants from registering the same or similar trademarks in the same or similar categories, even if the later applicants may have a much longer history of use, or a greater reputation in using the trademarks.
In such cases, there are few options available for the later applicant to contest the prior registrations, unless it can prove that its trademarks are well-known or that the prior registration has not been used for a consecutive three-year period.
Because of these difficulties, many later applicants resolve the matter by purchasing the previous registrations.
As in the United States, each new application will be preliminarily screened by the Trademark Office.
The preliminary screening is a fairly straight-forward process, and the Trademark Office has a centralized database of all registered or applied-for trademarks.
A trademark application which passes the preliminary screening will be published in the Trademark Office's gazette for public objection for a three-month period.
The Trademark Office will subsequently issue a registration certificate if nobody raises any objection within the said three-month period, or if the objection is rejected by the Trademark Office.
However, if any objection is supported by the Trademark Office, the Trademark Office will deny the application.
The Trademark Office's decision may be reviewed by the TRAB, and the TRAB's decision may be judicially reviewed by the People's Court, upon request.
Protection
There are four basic ways in which US companies may protect their trademarks in China.
* Preventing registration of infringing trademarks
The first method of protection is for a company to prevent others from registering trademarks that are the same as, or similar to, its trademarks.
As previously discussed, defensive registrations are an effective way to prevent later applicants from registering in the same categories.
In addition, it is advisable that a US company use an authorized local trademark agent to monitor possible infringements of its registered trademarks.
Although its preliminary screening function serves to eliminate identical or highly similar marks, the Trademark Office checks similarity in a rigid and prescribed manner.
Also, the Trademark Office may not be able to identify certain similarities; and it has no way to determine whether an application has been filed in bad faith.
However, using their professional judgment, local trademark agents are able to spot applications that could prejudice a trademark owner's interests. Once spotted, a trademark owner may raise objections to such applications based on certain legal grounds.
In addition to the foregoing, when doing business in China, a US company should always contractually prohibit or restrict its business partners/distributors/licensees from registering its trademarks.
It is advisable to seek legal advice as to the degree and depth of such prohibitions and restrictions, depending on the company's business practices.
* Cancelling existing registrations of infringing trademarks
The second method of protection is to seek to cancel existing registrations of trademarks that are the same as, or similar to, the company's trademarks.
Once a trademark that infringes its trademark rights has been registered, a trademark owner may request the TRAB to cancel the registration by citing, for example, any of the foregoing grounds:
1. The trademark lacks distinctive character;
2. The registration was obtained through cheating or other illegal means;
3. The trademark is a reproduction, imitation or translation of, or is similarly confusing to, a well-known trademark that is not registered in China, and the registration is for identical or similar goods and/or services;
4. The trademark is a reproduction, imitation or a translation of, or similarly confusing to, a well-known trademark that is registered in China, and the registration is for non-identical or non-similar goods and/or services;
5. The registration violates the prior rights of another party; or
6. The trademark has not been used for a consecutive three-year period.
* Pursuing infringements and counterfeits
The third way to protect trademarks is to pursue infringements and counterfeits. Where infringements and counterfeiting have taken place, a trademark owner may take one or more of the following approaches to protect its rights:
1. The owner may complain to AICs.
The AICs are empowered to question the concerned parties, to review and copy documents such as account books or contracts related to the infringing acts, and to conduct on-site inspection on the infringer's premises.
If infringement is proven by AIC's investigations, the AIC may order the infringer to cease its infringing acts, confiscate or destroy the concerned goods and tools, and fine the infringer.
The advantages of the AIC approach are that the AIC generally is quicker to take preventive or enforcement measures; and AIC enforcement is a government action, and thus is relatively inexpensive to pursue.
2. The trademark owner may initiate a legal action with the court.
Courts play a very active and positive role in protecting trademark rights and punishing infringers. The courts allows plaintiffs to apply for injunctive relief if the plaintiff believes that failure to immediately stop the infringing acts would cause further non-remediable damages. Compared with the AIC approach, a court action involves judgment and enforcement steps and has higher requirements for the presentation of evidence.
3. The trademark owner may request customs to seize counterfeited products.
Such an approach is particularly suitable for famous brand products, the counterfeited versions of which are rampantly circulating across borders.
The above three approaches are not mutually exclusive and may be pursued in combination. The evidence and findings in one proceeding may be used in another.
* Managing use of company trademark
The fourth way for a company to protect its trademarks is its own proper use and management of its trademarks.
For example, a company licensing its trademarks to another person or entity should enter into a trademark licence agreement with the licensee, and such licence agreement should be recorded with the Trademark Office.
In addition, many US companies have internal trademark education programmes which are designed to instruct employees on how to properly use and protect trademarks in their daily operations.
Such a practice enables a company to protect its trademarks on a company-wide basis, rather than treating trademark issues as the responsibility of only the legal department.
Well-known trademarks
well-known trademark is defined in China as one that is well-known to the relevant general public and enjoys a relatively high reputation. Most companies make efforts to have their trademarks recognized as well-known trademarks, because well-known trademarks enjoy certain privileges, facilitating their protection.
Madrid Protocol
Efective November 2, 2003, the United States of America became a member of the Madrid Protocol.
The Madrid Protocol is a centralized international trademark filing system administered by the World Intellectual Property Organization from Geneva, Switzerland.
China has been a member of the Madrid Protocol since 1995.
US trademark owners may benefit from the Madrid Protocol by filing one trademark application in the United States and expand its protection into several foreign countries, including China, in a cost effective way.
The above is a summary of the mechanisms for the registration and protection of trademarks in China. It is not intended to be a comprehensive discussion of the subject matter, or to provide legal advice.
The authors are attorneys at the Shanghai Office of the International law firm of DWT LLP which has its head office in the United States.
2004-08-11
China Business Weekly
China has been revising its trademark laws and regulations to bring them more in line with WTO (World Trade Organization) rules and to provide companies with a better business environment with regard to intellectual property protection.
The purpose of this article is to help US companies understand the ever-evolving procedures governing the registration and protection of trademarks in China.
Trademark administration bodies
China employs a centralized trademark registration system. The Trademark Office within the State Administration of Industry and Commerce (SAIC) (Trademark Office) is responsible for the registration and overall administration of trademarks.
The local counterparts of SAIC, the Administration of Industry and Commerce (AICs) have established trademark offices to handle trademark administration and enforcement at local levels.
The Trademark Review and Adjudication Board (TRAB) within SAIC is responsible for handling trademark registration disputes.
Registration
US company doing business in China should first ensure that its trademarks are properly registered in China.
All marks for goods, services, collective marks and certification marks (collectively referred to as "trademarks") can be registered, provided they meet the stipulated requirements for registration.
Although registration is highly recommended, it is not mandatory, except in the case of trademarks used on specific goods such as pharmaceutical and tobacco products, which must be sold bearing registered trademarks.
Foreign individuals or enterprises must use authorized local agents in seeking trademark registration and handling other trademark related matters.
China employs a "first-to-file" system for trademark registrations, rather than the "first-to-use" system generally adopted in the United States.
Since China and the United States are both members to the Paris Convention, a US company that has applied for registration of a trademark in the United States may be regarded as having applied for the same registration in China on the same date, provided the application in China is filed within six months of the US filing date.
China's requirements for obtaining a trademark registration are basically the same as those in most other countries; namely, the trademark must be distinctive, and must not conflict with an existing registration.
Many companies also seek trademark registration in China as a defensive measure, applying for registrations in as many categories of goods and/or services as is viable.
While most US companies tend to register trademarks on goods and/or services related directly to their businesses, they often discover that their trademarks are registered by others in categories in which they, themselves, do not think it necessary to register.
Defensive registrations waste resources, since a company may obtain registrations in categories having nothing to do with its existing businesses.
Such defensive registrations nevertheless effectively prevent any later applicants from registering the same or similar trademarks in the same or similar categories, even if the later applicants may have a much longer history of use, or a greater reputation in using the trademarks.
In such cases, there are few options available for the later applicant to contest the prior registrations, unless it can prove that its trademarks are well-known or that the prior registration has not been used for a consecutive three-year period.
Because of these difficulties, many later applicants resolve the matter by purchasing the previous registrations.
As in the United States, each new application will be preliminarily screened by the Trademark Office.
The preliminary screening is a fairly straight-forward process, and the Trademark Office has a centralized database of all registered or applied-for trademarks.
A trademark application which passes the preliminary screening will be published in the Trademark Office's gazette for public objection for a three-month period.
The Trademark Office will subsequently issue a registration certificate if nobody raises any objection within the said three-month period, or if the objection is rejected by the Trademark Office.
However, if any objection is supported by the Trademark Office, the Trademark Office will deny the application.
The Trademark Office's decision may be reviewed by the TRAB, and the TRAB's decision may be judicially reviewed by the People's Court, upon request.
Protection
There are four basic ways in which US companies may protect their trademarks in China.
* Preventing registration of infringing trademarks
The first method of protection is for a company to prevent others from registering trademarks that are the same as, or similar to, its trademarks.
As previously discussed, defensive registrations are an effective way to prevent later applicants from registering in the same categories.
In addition, it is advisable that a US company use an authorized local trademark agent to monitor possible infringements of its registered trademarks.
Although its preliminary screening function serves to eliminate identical or highly similar marks, the Trademark Office checks similarity in a rigid and prescribed manner.
Also, the Trademark Office may not be able to identify certain similarities; and it has no way to determine whether an application has been filed in bad faith.
However, using their professional judgment, local trademark agents are able to spot applications that could prejudice a trademark owner's interests. Once spotted, a trademark owner may raise objections to such applications based on certain legal grounds.
In addition to the foregoing, when doing business in China, a US company should always contractually prohibit or restrict its business partners/distributors/licensees from registering its trademarks.
It is advisable to seek legal advice as to the degree and depth of such prohibitions and restrictions, depending on the company's business practices.
* Cancelling existing registrations of infringing trademarks
The second method of protection is to seek to cancel existing registrations of trademarks that are the same as, or similar to, the company's trademarks.
Once a trademark that infringes its trademark rights has been registered, a trademark owner may request the TRAB to cancel the registration by citing, for example, any of the foregoing grounds:
1. The trademark lacks distinctive character;
2. The registration was obtained through cheating or other illegal means;
3. The trademark is a reproduction, imitation or translation of, or is similarly confusing to, a well-known trademark that is not registered in China, and the registration is for identical or similar goods and/or services;
4. The trademark is a reproduction, imitation or a translation of, or similarly confusing to, a well-known trademark that is registered in China, and the registration is for non-identical or non-similar goods and/or services;
5. The registration violates the prior rights of another party; or
6. The trademark has not been used for a consecutive three-year period.
* Pursuing infringements and counterfeits
The third way to protect trademarks is to pursue infringements and counterfeits. Where infringements and counterfeiting have taken place, a trademark owner may take one or more of the following approaches to protect its rights:
1. The owner may complain to AICs.
The AICs are empowered to question the concerned parties, to review and copy documents such as account books or contracts related to the infringing acts, and to conduct on-site inspection on the infringer's premises.
If infringement is proven by AIC's investigations, the AIC may order the infringer to cease its infringing acts, confiscate or destroy the concerned goods and tools, and fine the infringer.
The advantages of the AIC approach are that the AIC generally is quicker to take preventive or enforcement measures; and AIC enforcement is a government action, and thus is relatively inexpensive to pursue.
2. The trademark owner may initiate a legal action with the court.
Courts play a very active and positive role in protecting trademark rights and punishing infringers. The courts allows plaintiffs to apply for injunctive relief if the plaintiff believes that failure to immediately stop the infringing acts would cause further non-remediable damages. Compared with the AIC approach, a court action involves judgment and enforcement steps and has higher requirements for the presentation of evidence.
3. The trademark owner may request customs to seize counterfeited products.
Such an approach is particularly suitable for famous brand products, the counterfeited versions of which are rampantly circulating across borders.
The above three approaches are not mutually exclusive and may be pursued in combination. The evidence and findings in one proceeding may be used in another.
* Managing use of company trademark
The fourth way for a company to protect its trademarks is its own proper use and management of its trademarks.
For example, a company licensing its trademarks to another person or entity should enter into a trademark licence agreement with the licensee, and such licence agreement should be recorded with the Trademark Office.
In addition, many US companies have internal trademark education programmes which are designed to instruct employees on how to properly use and protect trademarks in their daily operations.
Such a practice enables a company to protect its trademarks on a company-wide basis, rather than treating trademark issues as the responsibility of only the legal department.
Well-known trademarks
well-known trademark is defined in China as one that is well-known to the relevant general public and enjoys a relatively high reputation. Most companies make efforts to have their trademarks recognized as well-known trademarks, because well-known trademarks enjoy certain privileges, facilitating their protection.
Madrid Protocol
Efective November 2, 2003, the United States of America became a member of the Madrid Protocol.
The Madrid Protocol is a centralized international trademark filing system administered by the World Intellectual Property Organization from Geneva, Switzerland.
China has been a member of the Madrid Protocol since 1995.
US trademark owners may benefit from the Madrid Protocol by filing one trademark application in the United States and expand its protection into several foreign countries, including China, in a cost effective way.
The above is a summary of the mechanisms for the registration and protection of trademarks in China. It is not intended to be a comprehensive discussion of the subject matter, or to provide legal advice.
The authors are attorneys at the Shanghai Office of the International law firm of DWT LLP which has its head office in the United States.
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option
Foreign law firms call for more freedom
2004-09-23
China Daily
Foreign law firms working in China are asking for a more open legal service market.
Dorsey & Whitney LLP, one of the largest full-service international law firms in the United States, hopes China will open its doors wider to foreign law firms by allowing them to employ Chinese lawyers.
"We need more freedom in the Chinese legal service market to expand our business faster," said Wesley Fredericks, deputy managing partner of Dorsey & Whitney.
At the moment, foreign law firms doing business in China cannot employ Chinese lawyers to provide legal services.
"The practice has limited our fast-growing business," said Fredericks.
Dorsey & Whitney entered the market on the Chinese mainland by setting up a Shanghai office in April 2001. It now has more than 10 employees, with its business space expanding from 200 square metres to 500.
"We have enough space to hold at least 50 employees to meet the growing business, but we can't get access to excellent Chinese lawyers although there are many in China," said Jay Yan, chief representative of Dorsey & Whitney in Shanghai.
This is because they have no American lawyer certificates. If they want to work as solicitors for China-based foreign law firms, they must first give up their Chinese lawyer certificates and then work abroad for at least two years.
Local insiders said the limit will, to some degree, slow up the business expansion of foreign law firms in China.
Miao Xiaobao, director of the Shanghai Justice Bureau, said: "The opening of the legal service market will take time and it is a gradual process."
"Therefore, we have to send some Chinese lawyers to study and work in the United States for a period of time first and then send them back to work in China," said Fredericks.
Local judicial officials suggested the city should lead the nation to optimize its legal service environment if it wants to sharpen its competitive edge.
Their words were echoed by officials with the Shanghai Foreign Investment Commission, who said legal services provided by foreign law firms are considered a stimulus to multinational investment in Shanghai.
The US law firm is considering opening the second office on the mainland with Beijing as its first choice, said Yan.
Shanghai now has 72 overseas law firms, accounting for 46 per cent of China's total. Of them, 62 come from 13 countries, 10 from Hong Kong.
Last year, their combined sales reached 350 million yuan (US$42.4 million), with each having average sales of 4.86 million yuan (US$588,378).
Local insiders said if foreign law firms were given the same treatment as their Chinese counterparts, the city's legal service market will advance quickly to stimulate its economic growth.
The US law firm's China practice covers a wide range of legal services in business and investment projects as well as resolving disputes on behalf of foreign multinational corporations and Chinese companies.
Foreign law firms call for more freedom
2004-09-23
China Daily
Foreign law firms working in China are asking for a more open legal service market.
Dorsey & Whitney LLP, one of the largest full-service international law firms in the United States, hopes China will open its doors wider to foreign law firms by allowing them to employ Chinese lawyers.
"We need more freedom in the Chinese legal service market to expand our business faster," said Wesley Fredericks, deputy managing partner of Dorsey & Whitney.
At the moment, foreign law firms doing business in China cannot employ Chinese lawyers to provide legal services.
"The practice has limited our fast-growing business," said Fredericks.
Dorsey & Whitney entered the market on the Chinese mainland by setting up a Shanghai office in April 2001. It now has more than 10 employees, with its business space expanding from 200 square metres to 500.
"We have enough space to hold at least 50 employees to meet the growing business, but we can't get access to excellent Chinese lawyers although there are many in China," said Jay Yan, chief representative of Dorsey & Whitney in Shanghai.
This is because they have no American lawyer certificates. If they want to work as solicitors for China-based foreign law firms, they must first give up their Chinese lawyer certificates and then work abroad for at least two years.
Local insiders said the limit will, to some degree, slow up the business expansion of foreign law firms in China.
Miao Xiaobao, director of the Shanghai Justice Bureau, said: "The opening of the legal service market will take time and it is a gradual process."
"Therefore, we have to send some Chinese lawyers to study and work in the United States for a period of time first and then send them back to work in China," said Fredericks.
Local judicial officials suggested the city should lead the nation to optimize its legal service environment if it wants to sharpen its competitive edge.
Their words were echoed by officials with the Shanghai Foreign Investment Commission, who said legal services provided by foreign law firms are considered a stimulus to multinational investment in Shanghai.
The US law firm is considering opening the second office on the mainland with Beijing as its first choice, said Yan.
Shanghai now has 72 overseas law firms, accounting for 46 per cent of China's total. Of them, 62 come from 13 countries, 10 from Hong Kong.
Last year, their combined sales reached 350 million yuan (US$42.4 million), with each having average sales of 4.86 million yuan (US$588,378).
Local insiders said if foreign law firms were given the same treatment as their Chinese counterparts, the city's legal service market will advance quickly to stimulate its economic growth.
The US law firm's China practice covers a wide range of legal services in business and investment projects as well as resolving disputes on behalf of foreign multinational corporations and Chinese companies.
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Crack down on copyright cheats
2004-11-22
China Daily
Copyright protection in China has made some progress since 2001, when the country amended its Copyright Law and joined the World Trade Organization.
But more efforts are needed to perfect this protection, officials and experts say.
"It is important to enhance the public's consciousness to protect the copyright of both domestic and foreign owners," said Xu Jialu, vice-chairman of the Standing Committee of the National People's Congress, at a symposium held in Beijing last week.
"People should know that it is wrong to pirate the works of others."
Xu said the director-general of the World Intellectual Property Organization had twice praised China's success in setting up a comprehensive intellectual property rights system within 20 years.
"Although international organizations thought highly of our progress in legislating on intellectual property rights (IPR), our practice is still far from satisfactory," Xu said.
"We must upgrade the skills of staff engaged in enforcing the laws, improve the efficiency of judicial departments and improve the public's awareness of IPR protection."
Protecting intellectual property rights is a long-term task.
It is not enough to hold a few conferences and launch a few special campaigns.
Instead, unremitting efforts should be made by copyright, public security and other related departments to fight against IPR infringements together, said Xu.
He suggested audio, video and computer software companies lower prices of copyright products so they are nearer to pirate ones, reducing the incentive to buy illegal copies.
Shi Zongyuan, director of the National Copyright Administration, said rooting out the piracy in video compact disks (VCD), digital video disks (DVD), textbooks and computer software products, is considered a high priority, as such activities are still rampant in some regions.
Shi said another important task is to popularize the use of copyrighted computer software for office work among government departments across the country.
A legislation system for copyright protection will also be improved.
Legislation of laws for protecting folk arts and literature is already underway.
The Regulation of Protection for Copyright on the Internet-based Information Network has been listed in plans for next year by the Legislative Affairs Office under the State Council, said Shi.
Shi said his administration also encourages the development of intermediary copyright agencies to help safeguard the interests of copyright owners.
The State Council has launched a special IPR protection campaign which will last throughout the whole of next year, focusing on anti-piracy in audio and video products, printing sectors and computer software products, according to Huang Hai, vice-director of the Office of the National IPR Protection Working Group.
Cry for protection
The Beijing-based Kingsoft Company, which was on the brink of closure because of poor profits several years ago, has been revitalized thanks to newly-developed products and copyright protection, said the company's head Lei Jun.
The company intends to invest 30 million yuan (US$3.6 million) to develop new software products.
"This new investment indicates that we are confident of copyright protection in the country," said Lei.
"The amendment of the Copyright Law and China's accession to the World Trade Organization have enhanced our confidence in doing business," he said.
Lei said more efforts are needed to protect intellectual property rights better. Industrial circles should not keep complaining about current problems, such as piracy.
They should make efforts themselves to safeguard their own IPR achievements and rationally lower the price of their products.
Wang Liping, a composer and the chairman of the China Music Copyright Association, said it is encouraging that music could no longer be played freely. This marked progress in the respect of copyright, Wang said.
But piracy is still rampant in some places and enforcement should be tightened, he said.
"As long as society makes concerted efforts to fight piracy, we can boost our national cultural industry," said Wang.
Development of Internet-based network technology and application of new technology have posed new problems in copyright protection. Relevant departments should work out more effective measures to protect copyright, said Liu Guoxiong, head of the China Audio and Video Association.
The music industry has long been heavily affected by piracy. Judicial and administrative authorities must intensify enforcement to slash piracy activities, said Liu.
He said music and cultural circles should also discipline themselves for copyright protection.
The departments of copyright, culture, public security, industry and commerce, customs, press and publication, have joined hands to crack down on piracy activities over the past few years, according to the publicity and information office of the National Copyright Administration.
However, producing and selling pirated VCDs and DVDs are common across the country, the cheaper prices attractive to the public, according to the administration.
It is difficult to arrest "sell-and-run" peddlers, who have no fixed and regular shops. They sell pirated VCDs or DVDs in the street, around schools or residential quarters, then flee.
Community committees will be encouraged to help the administration crack down on these peddlers.
Government action
A new piracy method of condensing digital video disks (DVD), by which many pieces of film or music are condensed into fewer disks, has seriously impaired the marketing of TV plays.
Markets of TV video compact disks (VCD) and DVDs are generally bustling in the second half of each year. But this year, sales volume of VCDs and DVDs is sluggish due to random sales of condensed DVDs, CCTV web news reported.
The TV series "Chinese-Style Divorce" was widely broadcast on many TV channels over the past two months. Copyright DVDs of this 23-part of TV series should have sold like hot cakes. But pirated condensed versions have so far outnumbered copyrighted copies in many cities.
Li Yongqing, business manager of Beijing Jindie Video Art Centre, said for a 23-part TV series, there were eight disks for all the parts on copyrighted DVDs, while there were only two disks in the pirate collections.
Some 11 major domestic video products companies are discussing how to reverse this situation.
The Ministry of Culture has circulated an urgent notice, calling on regional administrations to keep a close eye on wholesalers and retailers of video products, as well as corresponding markets, computer and other electronic products markets, to crack down on pirated DVDs.
Chenzhou in Central China's Hunan Province and Guangzhou in South China's Guangdong Province have recently closed an illegal production line of pirated DVDs.
Sources from the National Copyright Administration said activities of making and selling condensed DVDs have been monitored in recent years.
Slashing such activities is still a part of the anti-piracy campaign for the next few years, according to the administration.
Efforts by local governments
In the past two years, Beijing has set up the Beijing Copyright Protection Centre and the Beijing Computer Software Registration Centre to provide better services for copyright protection.
The Beijing Copyright Protection Centre has received more than 10,000 copyright applications over the past two years, including the logo for the 2008 Beijing Olympic Games.
To meet international standards, Beijing Copyright Agent Co has invited 16 experts in copyright from Britain, France, Italy, Norway, Iceland, Portugal and Australia to give periodic advice.
In July, Beijing Copyright Bureau and the Business Software Alliance of the United States launched a training programme in protecting copyrighted software, for the capital's enterprises and institutes involved in design, construction decoration, exhibitions, press and printing and computer software development.
According to Wang Yefei, the bureau's deputy director, Beijing has selected 20 audio and video shops as the first pilot group to sell copyrighted music products.
The bureau has also invited foreign investors to give honours to commercial sectors who prove to be effective in protecting copyright.
Wang suggested that IPR experts and the press educate the public and mobilize people from all walks of life in the fight.
"Scientific circles should develop anti-piracy technologies to counter piracy, because violators frequently update their skills," said Wang.
East China's Fujian Province - a hub of arts and crafts - has listed the protection of arts and crafts as a priority in the past two years, according to Bai Jingzhao, an official at the Fujian Provincial Copyright Bureau.
Cities and counties in the province have all set up copyright protection centres.
This year, the provincial bureau has conducted four special inspections into the markets and producers of books, audio and video products, computer software and especially arts and crafts industries.
The bureau has cracked down on 210 copyright violations, and most of the cases are related to arts and crafts produced in Sino-foreign joint ventures.
Bai said although the province is a hub of arts and crafts, most enterprises are labour-intensive ones lacking independent technology.
The province will select 10 outstanding companies to make technology breakthroughs under copyright protection.
Crack down on copyright cheats
2004-11-22
China Daily
Copyright protection in China has made some progress since 2001, when the country amended its Copyright Law and joined the World Trade Organization.
But more efforts are needed to perfect this protection, officials and experts say.
"It is important to enhance the public's consciousness to protect the copyright of both domestic and foreign owners," said Xu Jialu, vice-chairman of the Standing Committee of the National People's Congress, at a symposium held in Beijing last week.
"People should know that it is wrong to pirate the works of others."
Xu said the director-general of the World Intellectual Property Organization had twice praised China's success in setting up a comprehensive intellectual property rights system within 20 years.
"Although international organizations thought highly of our progress in legislating on intellectual property rights (IPR), our practice is still far from satisfactory," Xu said.
"We must upgrade the skills of staff engaged in enforcing the laws, improve the efficiency of judicial departments and improve the public's awareness of IPR protection."
Protecting intellectual property rights is a long-term task.
It is not enough to hold a few conferences and launch a few special campaigns.
Instead, unremitting efforts should be made by copyright, public security and other related departments to fight against IPR infringements together, said Xu.
He suggested audio, video and computer software companies lower prices of copyright products so they are nearer to pirate ones, reducing the incentive to buy illegal copies.
Shi Zongyuan, director of the National Copyright Administration, said rooting out the piracy in video compact disks (VCD), digital video disks (DVD), textbooks and computer software products, is considered a high priority, as such activities are still rampant in some regions.
Shi said another important task is to popularize the use of copyrighted computer software for office work among government departments across the country.
A legislation system for copyright protection will also be improved.
Legislation of laws for protecting folk arts and literature is already underway.
The Regulation of Protection for Copyright on the Internet-based Information Network has been listed in plans for next year by the Legislative Affairs Office under the State Council, said Shi.
Shi said his administration also encourages the development of intermediary copyright agencies to help safeguard the interests of copyright owners.
The State Council has launched a special IPR protection campaign which will last throughout the whole of next year, focusing on anti-piracy in audio and video products, printing sectors and computer software products, according to Huang Hai, vice-director of the Office of the National IPR Protection Working Group.
Cry for protection
The Beijing-based Kingsoft Company, which was on the brink of closure because of poor profits several years ago, has been revitalized thanks to newly-developed products and copyright protection, said the company's head Lei Jun.
The company intends to invest 30 million yuan (US$3.6 million) to develop new software products.
"This new investment indicates that we are confident of copyright protection in the country," said Lei.
"The amendment of the Copyright Law and China's accession to the World Trade Organization have enhanced our confidence in doing business," he said.
Lei said more efforts are needed to protect intellectual property rights better. Industrial circles should not keep complaining about current problems, such as piracy.
They should make efforts themselves to safeguard their own IPR achievements and rationally lower the price of their products.
Wang Liping, a composer and the chairman of the China Music Copyright Association, said it is encouraging that music could no longer be played freely. This marked progress in the respect of copyright, Wang said.
But piracy is still rampant in some places and enforcement should be tightened, he said.
"As long as society makes concerted efforts to fight piracy, we can boost our national cultural industry," said Wang.
Development of Internet-based network technology and application of new technology have posed new problems in copyright protection. Relevant departments should work out more effective measures to protect copyright, said Liu Guoxiong, head of the China Audio and Video Association.
The music industry has long been heavily affected by piracy. Judicial and administrative authorities must intensify enforcement to slash piracy activities, said Liu.
He said music and cultural circles should also discipline themselves for copyright protection.
The departments of copyright, culture, public security, industry and commerce, customs, press and publication, have joined hands to crack down on piracy activities over the past few years, according to the publicity and information office of the National Copyright Administration.
However, producing and selling pirated VCDs and DVDs are common across the country, the cheaper prices attractive to the public, according to the administration.
It is difficult to arrest "sell-and-run" peddlers, who have no fixed and regular shops. They sell pirated VCDs or DVDs in the street, around schools or residential quarters, then flee.
Community committees will be encouraged to help the administration crack down on these peddlers.
Government action
A new piracy method of condensing digital video disks (DVD), by which many pieces of film or music are condensed into fewer disks, has seriously impaired the marketing of TV plays.
Markets of TV video compact disks (VCD) and DVDs are generally bustling in the second half of each year. But this year, sales volume of VCDs and DVDs is sluggish due to random sales of condensed DVDs, CCTV web news reported.
The TV series "Chinese-Style Divorce" was widely broadcast on many TV channels over the past two months. Copyright DVDs of this 23-part of TV series should have sold like hot cakes. But pirated condensed versions have so far outnumbered copyrighted copies in many cities.
Li Yongqing, business manager of Beijing Jindie Video Art Centre, said for a 23-part TV series, there were eight disks for all the parts on copyrighted DVDs, while there were only two disks in the pirate collections.
Some 11 major domestic video products companies are discussing how to reverse this situation.
The Ministry of Culture has circulated an urgent notice, calling on regional administrations to keep a close eye on wholesalers and retailers of video products, as well as corresponding markets, computer and other electronic products markets, to crack down on pirated DVDs.
Chenzhou in Central China's Hunan Province and Guangzhou in South China's Guangdong Province have recently closed an illegal production line of pirated DVDs.
Sources from the National Copyright Administration said activities of making and selling condensed DVDs have been monitored in recent years.
Slashing such activities is still a part of the anti-piracy campaign for the next few years, according to the administration.
Efforts by local governments
In the past two years, Beijing has set up the Beijing Copyright Protection Centre and the Beijing Computer Software Registration Centre to provide better services for copyright protection.
The Beijing Copyright Protection Centre has received more than 10,000 copyright applications over the past two years, including the logo for the 2008 Beijing Olympic Games.
To meet international standards, Beijing Copyright Agent Co has invited 16 experts in copyright from Britain, France, Italy, Norway, Iceland, Portugal and Australia to give periodic advice.
In July, Beijing Copyright Bureau and the Business Software Alliance of the United States launched a training programme in protecting copyrighted software, for the capital's enterprises and institutes involved in design, construction decoration, exhibitions, press and printing and computer software development.
According to Wang Yefei, the bureau's deputy director, Beijing has selected 20 audio and video shops as the first pilot group to sell copyrighted music products.
The bureau has also invited foreign investors to give honours to commercial sectors who prove to be effective in protecting copyright.
Wang suggested that IPR experts and the press educate the public and mobilize people from all walks of life in the fight.
"Scientific circles should develop anti-piracy technologies to counter piracy, because violators frequently update their skills," said Wang.
East China's Fujian Province - a hub of arts and crafts - has listed the protection of arts and crafts as a priority in the past two years, according to Bai Jingzhao, an official at the Fujian Provincial Copyright Bureau.
Cities and counties in the province have all set up copyright protection centres.
This year, the provincial bureau has conducted four special inspections into the markets and producers of books, audio and video products, computer software and especially arts and crafts industries.
The bureau has cracked down on 210 copyright violations, and most of the cases are related to arts and crafts produced in Sino-foreign joint ventures.
Bai said although the province is a hub of arts and crafts, most enterprises are labour-intensive ones lacking independent technology.
The province will select 10 outstanding companies to make technology breakthroughs under copyright protection.
option
option
Farmers show all are equal in front of the law
2005-03-24
China Daily
A group of farmers from Wuxi, East China's Jiangsu Province, won a lawsuit against the Ministry of Land and Resources recently. The Beijing No 1 Intermediate People's Court ruled last Friday that the ministry should consider the farmers' applications and rethink its approval of a local land requisition case.
Such a result has aroused public attention nationwide. Here are comments from the Chinese media:
China Economic Times: This is not the first time that a ministry-level department has been sued, and not the first time for it to lose the case either.
But every such case attracts much public attention. People take delight in talking about the farmers' courage and wisdom in suing the ministry.
When resorting to legal means to fight for one's rights is not a common practice among the public, such a case and victory provides a valuable lesson.
In terms of power and knowledge, the 150 farmers cannot compete with the Ministry of Land and Resources. The Beijing No 1 Intermediate People's Court is also a local court that cannot compare with the ministry in official rank or resources.
But all entities are equal before the law, something that has been brought home with this case.
The law cannot guarantee that everyone enjoys the same resources at birth. But it guarantees that everyone has to abide by the same rules. When our rights are harmed, we can appeal to the law for protection.
The farmers' victory shows us that everyone is equal in front of the law. And together with good laws, and courts that dispense the laws justly, citizens who are willing to fight for their rights are able to bring about justice.
Dahe Daily: Though this case has only passed its first hurdle, and the final result of the administrative reconsideration is still not known, the case shows the progress in restricting administrative power.
Facing similar lawsuits, some courts may extricate themselves with an excuse that the case is "not in its range of acceptance." But the Beijing No 1 Intermediate People's Court took the Ministry of Land and Resources as an ordinary defendant that is no more important than the farmers, and decided according to the law. Its decision protects the interests and rights of the farmers and increases our confidence in the law and justice. The court deserves applause.
The ruling allows us to see the important role that courts can play in mediating between the public and government departments. Social conflict is unavoidable, but as long as the courts can dispense the laws justly, social stability and harmony are achievable.
The case can also enlighten disadvantaged farmers. They know that when they take collective action they can achieve a better result. A collective voice is always louder than an individual's.
Guangzhou Daily: More social disputes should be resolved through legal channels. Citizens should be encouraged to appeal to the law for the protection of their rights and the courts should provide them with access to the law.
The case shows that the farmers' legal knowledge was not poor. The four representatives of the 150 farmers were over 60 years old on average, but their performances were as good as the legal professionals in court.
And they were given equality, which will encourage more people to use the law to protect their rights.
A successful legal system has more use than any books or preaching.
What is more, though only one case, the farmers' victory sends a warning to government departments that they need to perform their duties according to the law. Otherwise, high-level departments, such as the ministry in this case, may have to sit in court as the accused. In this respect, the farmers' attack on the ministry's administrative inaction promotes government by law.
The farmers' victory is just a start. But only when such cases are not news can we say that the rule of law has been achieved.
www.xinhuanet.com: The farmers' victory in this case deserves applause. But there are also things to worry about.
The case deserves applause because it shows us that government officials and ordinary people are equal in front of the law. And the case shows that ordinary citizens' legal knowledge has been enhanced. It is expected that more and more people will use the law to protect their interests and rights in future.
But the case also shows that some government departments are still ignoring ordinary people's legitimate rights. In this case, the farmers' land was to be used for house building, but was taken as "land for industry and mining." The land was simply requisitioned for commercial development by the local authorities. This greatly harms farmers' interests.
The farmers' victory is only over the accusation of the ministry's administrative inaction. If the farmers had accused the local government of illegal land requisition at a local court, would they have won in the case? This is questionable.
Farmers show all are equal in front of the law
2005-03-24
China Daily
A group of farmers from Wuxi, East China's Jiangsu Province, won a lawsuit against the Ministry of Land and Resources recently. The Beijing No 1 Intermediate People's Court ruled last Friday that the ministry should consider the farmers' applications and rethink its approval of a local land requisition case.
Such a result has aroused public attention nationwide. Here are comments from the Chinese media:
China Economic Times: This is not the first time that a ministry-level department has been sued, and not the first time for it to lose the case either.
But every such case attracts much public attention. People take delight in talking about the farmers' courage and wisdom in suing the ministry.
When resorting to legal means to fight for one's rights is not a common practice among the public, such a case and victory provides a valuable lesson.
In terms of power and knowledge, the 150 farmers cannot compete with the Ministry of Land and Resources. The Beijing No 1 Intermediate People's Court is also a local court that cannot compare with the ministry in official rank or resources.
But all entities are equal before the law, something that has been brought home with this case.
The law cannot guarantee that everyone enjoys the same resources at birth. But it guarantees that everyone has to abide by the same rules. When our rights are harmed, we can appeal to the law for protection.
The farmers' victory shows us that everyone is equal in front of the law. And together with good laws, and courts that dispense the laws justly, citizens who are willing to fight for their rights are able to bring about justice.
Dahe Daily: Though this case has only passed its first hurdle, and the final result of the administrative reconsideration is still not known, the case shows the progress in restricting administrative power.
Facing similar lawsuits, some courts may extricate themselves with an excuse that the case is "not in its range of acceptance." But the Beijing No 1 Intermediate People's Court took the Ministry of Land and Resources as an ordinary defendant that is no more important than the farmers, and decided according to the law. Its decision protects the interests and rights of the farmers and increases our confidence in the law and justice. The court deserves applause.
The ruling allows us to see the important role that courts can play in mediating between the public and government departments. Social conflict is unavoidable, but as long as the courts can dispense the laws justly, social stability and harmony are achievable.
The case can also enlighten disadvantaged farmers. They know that when they take collective action they can achieve a better result. A collective voice is always louder than an individual's.
Guangzhou Daily: More social disputes should be resolved through legal channels. Citizens should be encouraged to appeal to the law for the protection of their rights and the courts should provide them with access to the law.
The case shows that the farmers' legal knowledge was not poor. The four representatives of the 150 farmers were over 60 years old on average, but their performances were as good as the legal professionals in court.
And they were given equality, which will encourage more people to use the law to protect their rights.
A successful legal system has more use than any books or preaching.
What is more, though only one case, the farmers' victory sends a warning to government departments that they need to perform their duties according to the law. Otherwise, high-level departments, such as the ministry in this case, may have to sit in court as the accused. In this respect, the farmers' attack on the ministry's administrative inaction promotes government by law.
The farmers' victory is just a start. But only when such cases are not news can we say that the rule of law has been achieved.
www.xinhuanet.com: The farmers' victory in this case deserves applause. But there are also things to worry about.
The case deserves applause because it shows us that government officials and ordinary people are equal in front of the law. And the case shows that ordinary citizens' legal knowledge has been enhanced. It is expected that more and more people will use the law to protect their interests and rights in future.
But the case also shows that some government departments are still ignoring ordinary people's legitimate rights. In this case, the farmers' land was to be used for house building, but was taken as "land for industry and mining." The land was simply requisitioned for commercial development by the local authorities. This greatly harms farmers' interests.
The farmers' victory is only over the accusation of the ministry's administrative inaction. If the farmers had accused the local government of illegal land requisition at a local court, would they have won in the case? This is questionable.
Revising draft law on property rights
Revising draft law on property rights
(Xinhua)
Updated: 2005-07-11 09:28
Chinese legislature on Sunday released its draft law on property rights in full text to general public for soliciting revision opinions.
The draft law on property rights, with five chapters and 268 items, had been deliberated for three times by China's lawmakers by the end of June. Citizens could offer their revision opinions on the draft law prior to August 20.
Then, the Commission of Legislative Affairs of the Standing Committee of the 10th National People's Congress (NPC) will revise the draft law according to public opinions and submit the revised draft law to the NPC Standing Committee for fourth deliberation.
The draft law will be submitted to the fourth plenary session of the 10th NPC, which will be held next March, for the fifth deliberation and will be voted for adoption at the session.
Normally, China's law draft could be passed through after three times deliberation. The draft law on property rights was, however, arranged to deliberate by lawmakers for fifth times before adoption.
The draft law, defining and safeguarding all the property rights, is related to every citizen's fundamental rights.
According to the draft law, property owners shall be given reasonable compensation when their properties are taken over for public use. Those who refuse to make the compensation will bear legal responsibilities.
Over the past more than half century, China's farmers are allowed to save a certain piece of land to build their own houses. However, as an increasing number of urban citizens became affluent in recent years, they are fond of buying such kind of land from farmers to build villas for their weekend vocation.
This time, the draft law on property rights says absolutely no to the phenomenon. The draft law defined that urban citizens were not allowed to buy the land saved for farmers'use only so as to safeguard farmers' fundamental property rights.
The draft law on property rights defined that the ownership of parking lots, grassland and clubs in resident community should be shared by the residents, rather than the real estate developers.
Wang Shengming, director of the Commission of Legislative Affairs of the NPC Standing Committee said that it will make citizens more assured to their properties to nail down the ownership of every property right.
The draft law also aims to protect the state property by defining that administrative staff in State-owned enterprises shall bear the civil, administrative or even criminal liabilities if they transfer the ownership of the public property by buying stocks or selling companies at low prices, which lead to the public assets loss.
While management buyouts (MBO) has been increasingly used to make State-owned companies into private ones in recent years, managers were often found cheating or engaged in malpractice damaging the interests of employees, investors and financial institutions but bringing themselves private gains.
According to official statistics, China losses 40 billion yuan (US$4.8 billion) of State-owned assets annually. The loss of the state-owned assets has triggered dissatisfaction and condemnation across the country, as many companies' employees appealed to the governments for intervention.
The draft law on property rights was also believed to be another critical legislative step to protect citizen's private assets. A previous amendment was made to the Constitution in March 2004. At that time, the clause that citizen's legitimate private assets could not be violated was written into the Constitution.
Revising draft law on property rights
(Xinhua)
Updated: 2005-07-11 09:28
Chinese legislature on Sunday released its draft law on property rights in full text to general public for soliciting revision opinions.
The draft law on property rights, with five chapters and 268 items, had been deliberated for three times by China's lawmakers by the end of June. Citizens could offer their revision opinions on the draft law prior to August 20.
Then, the Commission of Legislative Affairs of the Standing Committee of the 10th National People's Congress (NPC) will revise the draft law according to public opinions and submit the revised draft law to the NPC Standing Committee for fourth deliberation.
The draft law will be submitted to the fourth plenary session of the 10th NPC, which will be held next March, for the fifth deliberation and will be voted for adoption at the session.
Normally, China's law draft could be passed through after three times deliberation. The draft law on property rights was, however, arranged to deliberate by lawmakers for fifth times before adoption.
The draft law, defining and safeguarding all the property rights, is related to every citizen's fundamental rights.
According to the draft law, property owners shall be given reasonable compensation when their properties are taken over for public use. Those who refuse to make the compensation will bear legal responsibilities.
Over the past more than half century, China's farmers are allowed to save a certain piece of land to build their own houses. However, as an increasing number of urban citizens became affluent in recent years, they are fond of buying such kind of land from farmers to build villas for their weekend vocation.
This time, the draft law on property rights says absolutely no to the phenomenon. The draft law defined that urban citizens were not allowed to buy the land saved for farmers'use only so as to safeguard farmers' fundamental property rights.
The draft law on property rights defined that the ownership of parking lots, grassland and clubs in resident community should be shared by the residents, rather than the real estate developers.
Wang Shengming, director of the Commission of Legislative Affairs of the NPC Standing Committee said that it will make citizens more assured to their properties to nail down the ownership of every property right.
The draft law also aims to protect the state property by defining that administrative staff in State-owned enterprises shall bear the civil, administrative or even criminal liabilities if they transfer the ownership of the public property by buying stocks or selling companies at low prices, which lead to the public assets loss.
While management buyouts (MBO) has been increasingly used to make State-owned companies into private ones in recent years, managers were often found cheating or engaged in malpractice damaging the interests of employees, investors and financial institutions but bringing themselves private gains.
According to official statistics, China losses 40 billion yuan (US$4.8 billion) of State-owned assets annually. The loss of the state-owned assets has triggered dissatisfaction and condemnation across the country, as many companies' employees appealed to the governments for intervention.
The draft law on property rights was also believed to be another critical legislative step to protect citizen's private assets. A previous amendment was made to the Constitution in March 2004. At that time, the clause that citizen's legitimate private assets could not be violated was written into the Constitution.
Revising draft law on property rights
New rules to help private businesses
New rules to help private businessesNew rules to help private businesses
近日，中华全国工商业联合会第九届常务委员会第六次会议在南京召开。国家发改委年内将汇总全国各相关部委关于《国务院关于鼓励支持和引导个体私营等非公有制经济发展的若干意见》的具体实施方案，正式出台贯彻“非公经济36条”实施细则。
Job-searchers crowd to make registration as 120 local private businesses in Jiaxing, Zhejiang Province, open up job vacancies. The photo is taken on February 25, 2005. (newsphoto)
Efforts are being stepped up to remove legal hurdles hindering the development of China's 3.4 million private enterprises.
Officials with the Law Department of the All-China Federation of Industry and Commerce (ACFIC) said yesterday that some of the country's laws and regulations conflict with central government efforts to allow private enterprises achieve their potential.
The State Council freed-up operations of private companies, responsible for employing at least 47 million people, in a number of industries in February.
Directives allowed private companies to enter previously State-monopolized sectors like the railways, civil aviation and even national defence and also gave them easier access to bank loans.
"However, some laws and regulations, in effect, contradict the spirit of the cabinet's decision, and examples can be found everywhere," said an ACFIC official.
One example of the contradictions is that Interim Rules on Private Enterprises, released by the State Council in 1988, clearly bar private companies from the military industry and finance sectors. Under the new policy, private companies are allowed to bid for some military projects.
Corporate Law also says that only State-owned enterprises are allowed to manufacture "special products," such as weapons.
The Supreme People's Court's judicial interpretation in 1999, banning private companies from seeking investment from individuals, is also a case in point.
The ACFIC official, who preferred to be unnamed, said the federation is dispatching teams to seven provinces to find out how serious the problem is and what the best solution would be.
The federation is expected to submit proposals on amending relevant laws and regulations to both the central government and the law-making National People's Congress (NPC) after the survey is completed in June.
China enshrined individual property rights in the constitution last March, and declared them "inviolable."
Xu Jian, an official with the NPC's Financial and Economic Committee, said yesterday that a systematic law revamp is unlikely in the near future because legislation usually lags behind policy making.
He suggested, instead, that government departments revise their regulations and rules to remove restrictions on the development of private enterprises.
When conditions are ripe, the NPC could revamp or draft relevant laws, he added.
The Corporate Law is expected to be revised at the year-end to reflect the reality of the situation and current policies, said Xu.
The law will ensure a level playing field for all companies in China so they can compete effectively in the market, he noted.
Xu Kun, who owns several private companies in Shanghai, and Guizhou and Zhejiang provinces, said government departments should speed up revision of outdated regulations.
"I would like the central government to incorporate the changes in its 11th Five-Year Plan (2006-10)," said the businessman.
If the changes are included in the five-year plan, the central government can prod government departments to make revisions earlier, he said.
(Agencies)
近日，中华全国工商业联合会第九届常务委员会第六次会议在南京召开。国家发改委年内将汇总全国各相关部委关于《国务院关于鼓励支持和引导个体私营等非公有制经济发展的若干意见》的具体实施方案，正式出台贯彻“非公经济36条”实施细则。
Job-searchers crowd to make registration as 120 local private businesses in Jiaxing, Zhejiang Province, open up job vacancies. The photo is taken on February 25, 2005. (newsphoto)
Efforts are being stepped up to remove legal hurdles hindering the development of China's 3.4 million private enterprises.
Officials with the Law Department of the All-China Federation of Industry and Commerce (ACFIC) said yesterday that some of the country's laws and regulations conflict with central government efforts to allow private enterprises achieve their potential.
The State Council freed-up operations of private companies, responsible for employing at least 47 million people, in a number of industries in February.
Directives allowed private companies to enter previously State-monopolized sectors like the railways, civil aviation and even national defence and also gave them easier access to bank loans.
"However, some laws and regulations, in effect, contradict the spirit of the cabinet's decision, and examples can be found everywhere," said an ACFIC official.
One example of the contradictions is that Interim Rules on Private Enterprises, released by the State Council in 1988, clearly bar private companies from the military industry and finance sectors. Under the new policy, private companies are allowed to bid for some military projects.
Corporate Law also says that only State-owned enterprises are allowed to manufacture "special products," such as weapons.
The Supreme People's Court's judicial interpretation in 1999, banning private companies from seeking investment from individuals, is also a case in point.
The ACFIC official, who preferred to be unnamed, said the federation is dispatching teams to seven provinces to find out how serious the problem is and what the best solution would be.
The federation is expected to submit proposals on amending relevant laws and regulations to both the central government and the law-making National People's Congress (NPC) after the survey is completed in June.
China enshrined individual property rights in the constitution last March, and declared them "inviolable."
Xu Jian, an official with the NPC's Financial and Economic Committee, said yesterday that a systematic law revamp is unlikely in the near future because legislation usually lags behind policy making.
He suggested, instead, that government departments revise their regulations and rules to remove restrictions on the development of private enterprises.
When conditions are ripe, the NPC could revamp or draft relevant laws, he added.
The Corporate Law is expected to be revised at the year-end to reflect the reality of the situation and current policies, said Xu.
The law will ensure a level playing field for all companies in China so they can compete effectively in the market, he noted.
Xu Kun, who owns several private companies in Shanghai, and Guizhou and Zhejiang provinces, said government departments should speed up revision of outdated regulations.
"I would like the central government to incorporate the changes in its 11th Five-Year Plan (2006-10)," said the businessman.
If the changes are included in the five-year plan, the central government can prod government departments to make revisions earlier, he said.
(Agencies)
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