Lehman, Lee & Xu Article

Resident Blawgers











China Blogs



Quote of the Day

"The truth is rarely pure and never simple"

-Oscar Wilde

THE NEW PATENT PROMOTION REGULATIONS OF JIANGXI PROVINCE WAS ISSUED

By Tsolmon Shar


The People¡¯s Congress of Jiangxi Province has recently issued the Patent Promotion Regulations of Jiangxi Province, which shall take effect on 1 January 2010. The Regulations authorize the People¡¯s governments above the county level in Jiangxi province to establish diversion capital in support of patent activities such as patent implementation, protection and training. Patent development expenses of an enterprise may enjoy a tax preference according to laws. The regulations encourage and support the launching of patent rights pledge business by borrowing (lending) institutions and guarantee agencies, and credit support shall be firstly granted to implementation projects of patented technologies with great potential for development and promising market prospects. Borrowing (lending) institutions and guarantee agencies which meet the conditions may obtain certain risk subsidies from the provincial government. In addition, the Regulations also govern patent protection, administration and legal liabilities.
Mr. Edward Lehman, managing director of LEHMAN, LEE & XU Law Firm, regarded the Patent Promotion Rules as extraordinary achievement in patent system in purpose of building an innovation-oriented country and implementation of national IP strategy, which is destined to write a glorious chapter in the history of reform. He also noted that: ¡°since the establishment of patent system more than 20 years ago, China has shaped a patent administration and enforcement system efficiently supported by dual track enforcement of administrative and judicial, which plays a significant role in encouraging innovation and improving environment, further, it helps for reducing patent disputes.¡±
LEHMAN, LEE & XU is the third largest corporate commercial law firm in China, established in 1992 by a group of Chinese lawyers devoted to developing excellence in the practice of law and to the founding of modern law practices in China, providing a full range of China patent services including prosecution, licensing and dispute resolution. LEHMAN, LEE & XU¡¯s patent lawyers have a wealth of experience in the patent law of China and in the international laws and conventions which govern the procurement and enforcement of patents worldwide. The Firm is recognized as a leading Law Firm providing the best and most diversified legal services and solutions to its clients. Today, LEHMAN, LEE & XU has extended its affiliate offices across China employing more than 250 licensed lawyers, patent and trademark attorneys and legal assistants.

To learn more about the Lehman, Lee & Xu, please visit to website: www.lehmanlaw.com
10-2 Liangmaqiao Diplomatic Compound, No. 22 Dongfang East Road, Chaoyang District
Beijing 100600 China
Tel: (86)(10)-8532 1919 Fax: (86)(10)-8532 1999
Email: mail@lehmanlaw.com
www.lehmanlaw.com
...

China Law 0 Comment January 6, 2010, 2:05 pm

Trademark Infringement Dispute Between Savio Macchine Tessili And Q-Savio Wuxi Textile Machinery

By Tsolmon Shar

Savio Machine Tessili S.P.A (hereinafter ¡°Savio¡±) brought the lawsuit against Q-Savio Wuxi Textile Machinery Co., Ltd. (hereinafter ¡°Q-Savio¡±) with the Municipal Intermediate People¡¯s Court of Jiangsu claiming that Q-Savio illegally used Savio¡¯s registered trademark of ¡°SAVIO¡± in its brochure of ¡°Automatic Winder¡± which Q-Savio distributed to the public at 2007 International Textile Machinery Exhibition and on Internet. After the Municipal People¡¯s Court of Jiangsu held the case, Q-Savio was ordered to cease the unlawful acts and pay damages occurred to Savio.

The higher People¡¯s Court of Jiangsu province entertained the case appealed by Q-Savio, argued that the words of SAVIO appeared on the brochures didn¡¯t deceive the public and Q-Savio didn¡¯t violate any laws and regulations. However, the higher People¡¯s Court dismissed the appeal and upheld the original judgment based on following facts:

 Savio brought at court enough materials which provide evidences that Q-Savio used the related brochures and websites for its publicity purpose. The business, introduction, contact details, including IP address and phone number inserted on the brochures and websites were identical, and the major products information contained in the product introduction section were also consistence.
 Q-Savio violated the article 3 of P.R.C Regulation for the Implementation of the Trademark Law which stipulates an act of using a mark same as or similar to a registered trademark on the same types of products without the permission of the registered trademark owner constitutes trademark infringement.
 Q-Savio failed to support adequate evidences which prove the products named in its brochures manufactured by the Qingdao Hongda Textile Machinery Co., Ltd. in cooperation with Savio. Even though such information on the brochures was authentic, Q-Savio could not prove that Savio permitted Q-Savio to use the registered trademark of ¡°SAVIO¡± on the products.

Mr. Edward Lehman, managing director of Lehman Lee & Xu Law Firm commented on the trademark rights enforcement in China that ¡°combating unauthorized use of trade names does not fall within the provisions of the Chinese trademark law. Rather, trade name owners must bring a Court action under the Trademark Law and Chinese Anti-Unfair Competition Law for misuse of a trade name.¡± He further stated that ¡°because of the challenges presented in attempting to combat counterfeiting and unauthorized trade name and trademark use in China, Lehman, Lee & Xu consists of trademark attorneys who have experience in dealing with these issues and taking appropriate action against infringers and counterfeiters.¡±

Lehman, Lee & Xu is one of top practices in Intellectual Property Law in China employing more than 250 lawyers. Lehman, Lee & Xu¡¯s Intellectual Property team provides its clients a wide range of legal services and essential legal solutions.

To learn more about the Lehman, Lee & Xu, please visit to website: www.lehmanlaw.com
10-2 Liangmaqiao Diplomatic Compound, No. 22 Dongfang East Road, Chaoyang District
Beijing 100600 China
Tel: (86)(10)-8532 1919 Fax: (86)(10)-8532 1999
Email: mail@lehmanlaw.com
www.lehmanlaw.com
...

China Law 0 Comment December 31, 2009, 9:13 am

The State Council Solicits opinions for the Regulations on the Customs Protection of IPRs

Tsolmon Shar

The Legislative Affairs Office of the State Council issued the ¡°Decisions of the State Council on Revising the ¡®Regulations of the People¡¯s Republic of China on Intellectual Property Rights Protection by Customs¡¯ (Draft for Approval)¡±, inviting public to give comments and suggestions by 25 December 2009. The Public provided their comments in three ways: first, the Chinese government the Rule of Law Login Information Network (Web site: http://www.chinalaw.gov. cn); second, through correspondence; third, through e-mail.
Available at: (Chinese version) http://www.chinalaw.gov.cn/article/cazjgg/200912/20091200144478.shtml

The draft made 6 important revisions upon the original Regulations on the Customs Protection of Intellectual Property Rights, i.e. the alteration and cancellation of IPR records, counter guarantee, the retrieval of protection application made by the IPR holders and the legal responsibility due to import and export of infringing goods. With respect to auctioning off infringing goods, the draft amended Regulations and proposed to introduce one of the two possible sub-article governing destruction of infringing goods rather than auctioning them off: (1) except for certain circumstances, just removing the illegal trademarks on the infringing goods or counterfeit goods is insufficient to allow such goods to be sold in business activities; or (2) except for certain circumstances, not just removing the infringing trademarks on the infringing goods or counterfeit goods will prevent them from being sold in business activities. Considering the serious situation that the offenders export infringed goods by mailing, the draft amended the 28th article in the original regulations to "the import and export goods brought by individuals or mailed by express will be regarded as infringement goods if the goods exceed self use and reasonable quantity and infringe IP rights regulated in the second article of the draft regulations".

Mr. Edward Lehman, managing director of Lehman, Lee & Xu Law Firm commented that: ¡°this decision of the State Council is one of the significant results of the 2009 IPR Protection Action Plan.¡± And He further mentioned: ¡°to solicit the public opinions on Regulations, which will enable legal professionals and law firms to provide inputs to the law and provide better quality legal services to our IP clients¡°¡£


Lehman, Lee & Xu Law Firm, is one of top practices of IPR in China maintaining offices in Beijing, Shanghai, Shenzhen, assists its clients in registration and enforcement of patents, trademarks and copyrights in China and around the world, via an efficient global network.


To learn more about the Lehman, Lee & Xu, please visit to website: www.lehmanlaw.com
10-2 Liangmaqiao Diplomatic Compound, No. 22 Dongfang East Road, Chaoyang District
Beijing 100600 China
Tel: (86)(10)-8532 1919 Fax: (86)(10)-8532 1999
Email: mail@lehmanlaw.com
www.lehmanlaw.com
...

China Law 0 Comment December 29, 2009, 3:17 pm

Double Filing under China¡¯s New Patent Law

Tsolmon Shar

The Third Amendment of China¡¯s Patent Law, which is in effect since October 1, 2009, introduced one of the important changes on ¡°double filing¡± issue, which allows applicants to file applications for both invention and utility model patents at the same time. A utility model patent is usually granted within eight to 12 months of filing the application. Currently, it takes between two and four years for an invention patent application to proceed to grant.

Under the new Patent Law, the applications for both an invention patent and a utility model patent for the same invention are permitted only if the following conditions are met:

The two different types of patent application are filed on the same day;

The applicant informs the Patent Office that it is filling two patent applications for the same invention; and

One of the two patents is abandoned when the invention patent is eventually granted.

The advantages of adopting a double filing strategy are similar under both the old and the new Patent law. A patent applicant can obtain a utility model patent quickly and rely on it to deal with infringers while the invention patent is undergoing examination.

Mr. Edward Lehman, managing director of Lehman, Lee & Xu commented on the changes that: ¡°compared to Chinese old Patent Law, the new law reduced the flexibility of the double filing by a requirement which demand the two applications be filed on the same day. In regard of this change, patent applicants must now think further ahead to determine whether patent infringement in China is likely to occur in the near future. If it is, it may be worth applying for both a utility model patent, which can be obtained quickly and readily enforced, and an invention patent¡±.

Lehman, Lee & Xu, is widely recognized as one of the largest and influential law firms in China, provides diversified legal services. The Intellectual Property Team, is one of the most highly regarded professional teams in Lehman, Lee & Xu Law Firm, provides a full range of China Patent Services which includes prosecution, licensing and dispute resolution. The IP team at Lehman, Lee & Xu, consists of senior partners and professional lawyers with many years of IP and legal advisory experience. The lawyers in this team are familiar with domestic IP laws and international treaties and some have backgrounds such as in electronic engineering, software design, e-commerce, international trade and other professional fields. Lehman, Lee & Xu Law Firm¡¯s IP team members bring their extensive knowledge of IP laws to the team for the benefit of their clients.

To learn more about the Lehman, Lee & Xu, please visit to website: www.lehmanlaw.com
10-2 Liangmaqiao Diplomatic Compound, No. 22 Dongfang East Road, Chaoyang District
Beijing 100600 China
Tel: (86)(10)-8532 1919 Fax: (86)(10)-8532 1999
Email: mail@lehmanlaw.com
www.lehmanlaw.com
...

China Law 0 Comment December 28, 2009, 2:55 pm

BEIJING NO. 1 INTERMEDIATE PEOPLE¡¯S COURT DISMISSES BAIDU ANTI-MONOPOLY LAWSUIT

December 18, 2009, Beijing. The Beijing No. 1 Intermediate People¡¯s Court has dismissed an abuse of dominance case against Chinese most popular search engine, Baidu.

On December 25, 2008 the litigation was filed with Beijing No. 1 Intermediate People¡¯s Court by Tangshan Renren Information Service Company (TRICS), claiming that Baidu restricted the access of searchers to their website. Baidu stated that Tangshan had illegally created links to increase traffic on its website, which results Baidu had to restrict the access to the site.

As the result of examination of the case, the Court concluded that Baidu did not abuse the legitimate right of TRICS. Therefore, the Court states that the actions taken by Baidu were neither discriminatory nor coercive.

Mr. Edward Lehman, managing director of Lehman, Lee & Xu, commented that ¡°since Anti-Monopoly Law became in effect in 2008, one of the features in these areas is that rise of a number of litigation launched by private parties challenging the market behaviour of large enterprises. Thus, this phenomenon may further increase in the litigation in near future involving such large enterprises.¡±

Lehman, Lee & Xu is one of the few truly top and premium law firms which engage in Anti-Monopoly practices able to deal with clients¡¯ broad diversity needs. At all Lehman, Lee & Xu¡¯s offices, many anti-monopoly and competition lawyers throughout the People¡¯s Republic of China (PRC) understand that its clients¡¯ legal strategies must be well-coordinated but tailored to relevant requirements. Since its first establishment in 1992, Lehman, Lee & Xu has extended its branch affiliated offices to 31 throughout in PRC with more than 250 lawyers who have outstanding legal education and practical background. Today, Lehman, Lee & Xu is recognized as leading Corporate and Commercial Law Firm which provides a wide range of customized legal services and practical solutions to its clients.

Tsolmon Shar

To learn more about the Lehman, Lee & Xu, please visit to website: www.lehmanlaw.com
10-2 Liangmaqiao Diplomatic Compound, No. 22 Dongfang East Road, Chaoyang District
Beijing 100600 China
Tel: (86)(10)-8532 1919 Fax: (86)(10)-8532 1999
Email: mail@lehmanlaw.com
www.lehmanlaw.com
...

China Law 0 Comment December 23, 2009, 9:04 am

An interpretation from the CIRC

On November 19th 2009, the CIRC issued a notice to explain the article 6 of its "Measures on Administering Disclosure of Information about Newly Launched Life Insurance Products" (Measures) which come into effect on October 1st 2009.

According to article 6 of the Measures, an insurance company should provide its clients insurance applications with a confirmation column when selling new life insurance products. And the clients should re-write the following words as I have read the insurance articles, products introductions and insurance attentions, and understand the character of this product and the benefits in the insurance policy are unascertained.

This interpretation explains that the article 6 is aiming at prompting risk warning to the insurance applicants and helping them understand the insurance products they brought and the potential risks. And the benefits specified in the article 6 shall include both ascertained benefits and unascertained benefits. But the re-write words ¡°the benefits in the insurance policy are unascertained¡± is only constrained to the unascertained benefits in new launched products. And the risk warning sentence shall not influence the ascertained benefits the insurance applicants, insurants and the insurance beneficiaries may get according to the insurance contract.

Lehman lawyer John Lee remarks that the article 6 is a policy that used to protect the rights of the insurance applicants in case the insurance company or agencies deliberately concealing the unascertained character of the products. It reveals the CIRC¡¯s good faith in protecting the applicants.
...

China Law 0 Comment December 10, 2009, 3:28 pm

The Supreme People Court¡¯s new regulation auction delegated by People¡¯s Court

The Supreme People¡¯s Court has released the ¡°Regulation on the Assessment, Auction and Sale of Property Delegated by People¡¯s Court¡± to rule the assessment, auction and sale work of the courts. This 16 articles regulation is aiming to deduce the potential corruption in the assessment, auction and sale process delegated by the People¡¯s courts.
It has detailed the way and process of selecting an access or auction agency. And it has also confirmed a punishment to who violate the regulation.
Lehman lawyer John Lee remarks this regulation as the supreme people¡¯s court¡¯s new action against court corruption as the many corruptions happened related to the access and auction process especially the process of selecting agencies.
...

China Law 0 Comment December 10, 2009, 2:52 pm

SAIC Imposes Rules on Trademark Agencies

The State Administration for Industry and Commerce (SAIC) has promulgated the "Measures on the Administration of Trademark Agencies" on November 11th.
In this new regulation, the authority of trademark agencies is now the county and above level Commerce and Industry Bureau instead of the province-level in the past.
And according to the regulation, a trademark agency is an organization which files applications for trademark registration and deals with other trademark issues for and on behalf of its clients upon receiving their instructions. A trademark agent should be a sound minded person who has a good knowledge of trademark related laws, regulations, etc. and woks in a trademark agency.
The regulation also claimed that a trademark agent shall not work in two agencies at the same time and shall not disclose the un-public information to other agencies or persons. And a trademark agent shall not provide service if he/she knows that the client is asking the service in bad faith or its conduct is violating the laws or commit a fraudulent. Any agent violate this regulation will get an administration punishment.
Lehman lawyer John Lee remarks that this new regulation which rules on the trademark agencies may contribute to a better trademark agency market and provide a safer environment for clients. Also the change of the authority level means that it is easier to open a trademark agency than before. This may gives a big push to the development of China¡¯s trademark agency market.

...

China Law 0 Comment December 10, 2009, 2:35 pm

Measures for the Administration of Trademark Agencies

The law is promulgated by the Administration of Industry and Commerce under the State Counsel according to the Trademark Law of People¡¯s Republic of China.

Some key law points are as follows:

Industrial and commercial administrative agencies above county level are in charge of trademark agencies and agents in their regions.

Persons who want to operate a trademark agency must apply to local industrial and commercial administrative agencies above county level for a Business License.

Trademark agencies and agents are not allowed to delegate to any other agencies or individuals their trademark agency work or to provide any assistance for such activities.

Trademark agencies can accept entrustment from the clients and handle following transactions:
a. trademark registration, change, expansion, transfer, dispute, evaluation, infringement complain, etc.;
b. provide trademark law legal advise, to be hired as trademark legal counsel;
c. any other trademark related transactions.

Trademark agencies are not allowed to accept entrustment from both sides of one trademark case.

Trademark agents must qualify for following conditions:
a. possess full civil capacity;
b. familiar with trademark and relevant law, regulations, and possess professional knowledge in trademark agency;
c. employed by a trademark agency.

A trademark agent is not allowed to work in more than two trademark agencies at the same time.

Trademark agencies shall refuse clients¡¯ entrustment when the clients¡¯ malice, fraud, or criminal intentions are known to the agency.
...

China Law 0 Comment December 7, 2009, 5:26 pm

The internet just became a bigger place

Sam Engutsamy. November 19, 2009.

Currently, web addresses are found either fully written in Latin characters, or containing only part non-Latin aspects within the addresses. The Internet Corporation for Assigned Names and Numbers (¡°ICANN¡±), within its report titled ¡®Proposed Final Implementation Plan for IDN ccTLD Fast Track Process¡¯, released on September 30, 2009 proposed web addresses be available in non Latin characters. This proposal was accepted at ICANN¡¯s annual meeting which was held in Seoul on October 30, 2009.

It was the case, that web addresses were limited too the alphabet letters, 0 ¨C 9, and the hyphen, however the approval of the proposal means that by mid-2010 web addresses can contain characters from different languages such as Chinese, Hindi, and Korean.

According to Times Magazine, over half of the 1.6 billion internet users around the world use languages which are not based on the Latin alphabet. Therefore, such a change only makes sense and opens up the internet to those who were previously limited due to unfamiliarity with the Latin alphabet. Others that will benefit from the change include local businesses, the young, and elderly.

The ICANN announced on its website, that as of November 16, 2009, they would be accepting requests from country representatives to register new Internet extensions in non Latin alphabet.

The ICANN¡¯s report is available for download in PDF format at: http://www.icann.org/en/topics/idn/fast-track/idn-cctld-implementation-plan-30sep09-en.pdf

Articles of interest:
http://www.nytimes.com/2009/10/31/technology/31net.html...

China Law 0 Comment November 20, 2009, 6:20 pm

The Secondary Path of Evolution

Sam Engutsamy, November 2009.

Whilst sitting warmly inside, as the effects of last night¡¯s snow slide down from my window, I stumbled over a verdict delivered by Shanghai No. 1 Intermediate People¡¯s Court, which surprisingly hasn¡¯t received much coverage domestically, but has been picked up and highlighted more on an international level.

Following on from my last post, ¡®Q&A: PRC¡¯s Anti-monopoly legislation ¨C A quick overview of the law to date¡¯, I noted that more cases are likely to be decided under the Anti-monopoly Law (¡°AML¡±). This is possible by either investigative actions by bodies under the Enforcement Authority (¡°AMEA¡±) or via private actions under Article 50 of the AML, which states that ¡®where the undertakings implement Monopolistic Conducts and cause losses to others, the undertakings shall be held for civil liabilities in accordance with the laws.¡¯

This decision is the first to be released by a court under the AML since its enactment in August 2008. Filed by Beijing Sursen Electronic Co, (¡°Sursen¡±), against two Shanghai based companies, Shanghai Shanda Network Development Co, and Shanghai Xuanting Entertainment Information and Technology Co, (¡°Defendants¡±), China¡¯s first court decided case concerned the issue of dominant market position of the online literature market. Essentially, Sursen claimed that as a result of the defendants prohibiting them from writing a sequel to a popular novel, this allowed the defendants to have a dominant market position of the online literature market, and consequently Sursen were seeking approximately RMB 17,000 in damages, and a public apology. Dismissing the claim, Shanghai No. 1 Intermediate People¡¯s Court found no proof from the evidence provided that the defendants held a dominant market position.

Additionally, another case concerning dominant market positions involving China Mobile was settled, with the company paying the plaintiff a sum of money for his suggestions and not as a reimbursement. Consequently, such a settlement could open the floodgates to additional private action claims under Article 50, however based on the fact that China Mobile remunerated the plaintiff for his suggestions, and for helping them with the improvement of their services, it is unlikely this will be the case.

The AML¡¯s overall evolution is predominantly and primarily taking effect via the release of guidance notes from bodies under the Anti-monopoly Commission (¡°AMC¡±) and the publication of cases by Mofcom in accordance with their statutory obligations under Article 30 of the AML. The AML may find itself branching off and forming a secondary path of evolution as a result of the powers vested under Article 50. It is hoped that pending cases (cases such as China Network and Baidu) will provide a greater insight on the future of this secondary path of evolution.

Additional update:
October 30th 2009, saw Mofcom release its sixth merger decision case, placing restrictive conditions of the acquisition of Sanyo Electric by Panasonic.
Please note that Mofcom only have a statutory obligation under Article 30 of the AML to publish mergers that have either been rejected, or have restrictive conditions placed on them. They are under no obligation to published mergers that have been approved.

Mofcom¡¯s publicised merger decisions to date:

http://blawg.lehmanlaw.com/english/uploadfiles/2009.11_82625.jpg
...

China Law 0 Comment November 10, 2009, 5:12 pm

New Chinese Hotel Industry Guideline released

China Tourist Hotel Association (CTHA) recently published the new version of the Chinese Hotel Industry Guideline, in which an article about checking-out-before-12 pm is deleted.

The guideline does not set clear rules about the time of checking out, though it does emphasize that tourist hotels should inform guests of the check-out time, Zhengzhou Evening Post reported Friday.

"Check out before 12 pm or additional charges will be added," has long been a guild regulation in the hotel industry.

The Beijing Consumers' Association pointed out that this regulation was improper as it harmed consumers' interests and rights.

The Chinese Hotel Industry Guideline previously however refused to change it preferring to follow standard international practice.

From now on the new guideline stipulates hotels should post the prices of different rooms and the method of charging in a prominent place at the reception or tell guests about the above information in a proper way.

Source: China Daily
http://www.chinadaily.com.cn/china/2009-09/04/content_8656156.htm...

China Law 0 Comment September 4, 2009, 5:23 pm

Judge Faces Punishment for Handcuffing Attorney

Senior officials in Yuxi intermediate court of southwest China's Yunan Province vowed on Sunday to punish a judge in Chengjiang county of Yuxi city who handcuffed an attorney to basketball stands in the burning sun for 40 minutes for his refusing to sign a court record that failed to completely record what the attorney had testified in court.

During a civil trial in Chengjiang county court on Friday, attorney He voiced an opinion on a legal procedure that differed from that of judge Hong, according to a report by Beijing Times.

After the trial, attorney He refused to sign his name on the court record because it did not include his key opinion on the legal procedure, and he believed he had a right to refuse to sign it.

But the judge, angry over He's refusal to sign the document, asked the court police to detain the lawyer, although He told him that the detention order had to be approved by the court's chief judge, according to Chinese law. But the court police handcuffed He under a nearby basketball stand for 40 minutes in line with Hong's order until the court chief judge came to release him and apologized.

On Sunday, the Yuxi intermediate court, the superior court of Chengjiang county court, issued a statement after its investigation that the judge had done wrong and that it would deal with him sternly.

He posted a letter of accusation on the Internet on Sunday night and decided to send it to the provincial procuratorates on Monday.

In the letter, He said that without the chief judge's permission, Hong had wrongfully detained him under the basketball stands in the burning sun for 40 minutes and Hong also deleted the file in his cell phone. He said he believed Hong's actions infringed upon his legal rights. He said according to Chinese criminal law, Hong should be charged with unlawful detention.

Source£º CRIENGLISH.com
2009-07-13
...

China Law 0 Comment July 16, 2009, 9:27 am

Leading Chinese law firm fosters role in combating corporate fraud

Published: July 13th, 2009
BEIJING ¨C While leading red circle law firm Lehman, Lee & Xu has built up a strong reputation in the fields of Intellectual Property and Mergers & Acquisitions, the firm also plays a key role in combating corporate fraud. ¡°Every year billions are lost through corporate fraud,¡± relays Edward Lehman, managing director of the firm, ¡°and unfortunately a lot of is due to carelessness.¡±
Many people in business who were used to meeting targets in the boom years are now feeling pressure to achieve the same levels in spite of the downturn. ¡°This, unfortunately can lead to fraud¡± states Lehman, long time China resident and Sinologist.
During the boom years businesses were successful in spite of corporate fraud. Now however businesses are suffering because of it, with recent surveys showing that fraud is a real concern for over 60% of senior managers in China. ¡°Its only natural to worry about receivables during tough economic times. The last thing businesses want though is to be worried about fraud¡±.
In an effort to help its clients cope with the problem the firm has began giving seminars on how to avoid fraud and the legal recourse available where business managers find themselves victims. ¡°Forewarned is forearmed in these situations¡± says Lehman who has been advising companies on best business practices for over two decades. ¡°Senior managers need to have an awareness of potential red flags¡±. Such flags are not just related to the behavior but also to business partners and suppliers. ¡°What makes it so difficult to combat corporate fraud is the many forms it comes in¡±.
Although more prevalent in tough times Lehman is under no illusion as to the route cause of the problem. ¡°The combination of greed and carelessness is at the root of most fraud. When you look at the Bernard Madoff scandal, it was the history of poor oversight which allowed the scheme to continue for so long¡± notes Lehman. ...

China Law 1 Comment July 13, 2009, 11:52 am

LAWYER HEADS US TEAM FOR EXPO BATTLE

Will Clem and Lilian Zhang in Shanghai
Jul 03, 2009

US Secretary of State Hillary Rodham Clinton has appointed a Texas lawyer to oversee the country's embattled campaign to build a national pavilion at the 2010 World Expo in Shanghai.

Jose Villarreal was named commissioner general of the US pavilion with 10 months left before the opening.

Major expo buildings are rapidly taking shape and work is well under way on most of the 40 national pavilions that the countries are building on their own.

However, the US project remains a source of embarrassment for the organisers. Despite repeated deadlines, the US is the only country yet to confirm whether it will take part or when it plans to break ground.

Unlike other nations, the US pavilion is not being paid for with public funds, so its entire US$61 million budget has to come from private donations.

China News Service reported yesterday that the US finally confirmed its participation in the six-month-long fair, but that appeared to be a false alarm.

A spokesman for the Shanghai Expo Bureau said organisers had not received confirmation from the United States.

"But there are still possibilities, and we are now actively pushing forward," he said.

A spokeswoman for the US pavilion's team said they had not received word from Washington that a formal confirmation had been authorised.

Mr Villarreal's appointment came hot on the heels of one of the pavilion's biggest donations - the organising team struck a US$5 million deal with Pepsi in Beijing on Wednesday, suggesting the troubled project is finally gaining momentum.

However, the fund-raising team declined to reveal how much has been raised so far, and have previously suggested that construction might not start for several more months.

The exact nature of Mr Villarreal's role is not clear, but the US State Department said he would be "responsible for oversight of the US pavilion" and "the official US government representative to the government of China on issues relating to World Expo Shanghai 2010".

Source: South China Morning Post
...

China Law 0 Comment July 3, 2009, 9:19 am

Fraudsters Profiting through Cybersquatting

Even as an internet savvy user¡ªI discovered a recent article on ¡°cybersquatting¡± that has me wondering how the legal issues of intellectual property will come to address this topic. Addressing actual manufacturing and distribution of illegal copies of branded products is still a controversial topic¡ªas these markets would not exist without consumer demand for counterfeited goods. However this new arena of cybersquatting, false associations, and phishing are not in response to a market demand but fertile ground for fraudsters to scam internet users.

As I examined the fake and real ¡°refinance your home now¡± or even various fake websites that had appropriated the name of famous retailers¡ªI was shocked at how well these domains appeared to be legitimate. Through abusing trademarks within the domain name system, using specified brands or trademarks to imply relationships where none exist, and diverting internet traffic to fraudulently acquire personal information and credit card details¡ªfraudsters are finding more and more ways to make a profit.

By Senayt Rahwa
...

China Law 0 Comment July 2, 2009, 5:00 pm

New Contract Law Could Provide Additional Legal Recourse During Times of Economic Crisis

Published: July 1, 2009
AMCHAM NEWS

BEIJING ¨C On May 12, 2009, the Supreme Court of the PRC issued the Interpretation (II) on Certain Issues concerning the Application of the Contract Law of the People's Republic of China (the Interpretation). The Interpretation, in Article 26, adds a significant development to the practice of Contract Law. Under the new law, a party may request to have the court terminate or amend a contract if any material change in circumstances occurs after a contract is formed, and is unforeseeable at the time the contract is entered into, but is not considered a commercial risk, and renders the continued performance by one party obviously unfair or frustrates the purpose of the contract. In short, Article 26 injects the doctrine of "change of circumstances" into PRC contract law.

It is interesting to note that the doctrine of change of circumstances was removed from the 1999 Contract Law of the PRC because of fears that the judiciary would have too much power in determining contract disputes. In the ensuing years, the absence of the doctrine produced many judicial determinations that were considered unjust. This trend was compounded with the financial crisis and the increasing number of instances where the change in circumstances was not contemplated by the parties at the time of the signing. Parties wishing to rely on the doctrine will have to show that (i) the change is not the result of a commercial risk; (ii) is not the result of force majuere; and (iii) was not foreseeable at the formation of the contract. Relevant to contracts impacted by the financial crisis are the first and third elements of the doctrine. Good lawyering will require distinguishing a legitimate change in circumstances from a common, albeit significant, commercial risk that the financial environment would remain conducive to a company's particular transactions. Furthermore, the specific change must be unforeseeable at the time of contracting--that is, it must be a development that is outside the normal, cyclical fluctuations of a market economy. Adding some ambiguity is the absence of a definition of "commercial risk." Aldo Settimio Boni de Nobili£¬Foreign Legal Counselor at Lehman£¬Lee & Xu, described the addition of the doctrine as a ¡°sea change in the practice of PRC Contract Law and extremely relevant given the current financial crisis.¡±

Ting Ting contributed to this article ...

China Law 0 Comment July 2, 2009, 11:34 am

US TRADE AND CUSTOMS LAW FIRM MEETS WITH THE LEADING CHINESE LAW FIRM

http://blawg.lehmanlaw.com/english//uploadfiles/20090629_11038.jpg

(left to right)
John Lee, Sophie Tan, Jeffrey S. Neeley, Li Hong, Brian F. Walsh, Lily Han, Eric Langland

Brian F. Walsh and Jeffrey S. Neeley, attorneys from Barnes, Richardson & Colburn, visited Lehman Lee & Xu at its Beijing office on June 25, 2009.

On June 25, 2009, two attorneys from one of leading US trade law firms Barnes, Richardson & ColburnBarnes, Richardson & Colburn visited Lehman Lee & Xu. The two parties exchanged views on the issuance of recent US anti-dumping petitions against Chinese enterprises and exporters. The two firms look forward to cooperating with each other in the anti-dumping area.

¡°Our firm has been focused on trade and customs since it was established in 1919. We have a long history of working with Chinese enterprises on antidumping investigations. Furthermore, we have good relationships with the related US and Chinese authorities. ¡± said Jeffrey S. Neeley.

Since the financial crisis and the economic downturn, more and more US enterprises submit anti-dumping petitions to US International Trade Commission and Department of Commerce against certain Chinese enterprises and exporters. Barnes, Richardson & Colburn is willing to cooperate with a Chinese domestic law firm in anti-dumping area. As one of the leading Chinese law firms, Lehman Lee & Xu has an active practice in the anti-dumping area.

The two parties discussed cooperation on antidumping investigations in the areas of steel£¬chemicals, paper, furniture and others. Furthermore, the two firms can also work together in the area of general corporate, foreign direct investment and intellectual property.

Barnes, Richardson & Colburn shared practical anti-dumping experience with Lehman Lee & Xu and the two parties also discussed the tips of handling anti-dumping cases.

The meeting was held in a friendly atmosphere. Both parties expressed their confidence for future cooperation.

Lehman, Lee & Xu, established in 1992, is at the forefront of international law practice in China. The firm has more than 200 lawyers in offices in Beijing, Shanghai, Guangzhou and Shenzhen, along with foreign branch offices in Hong Kong, Macau, Mongolia and Chicago. Over the past sixteen years, the firm has built a strong reputation in banking, foreign direct investment, mergers & acquisitions, international trade and dispute resolution. To learn more about the firm, please visit http://www.lehmanlaw.com/.

Barnes, Richardson & Colburn is one of the leading US trade and customs law firms.. Barnes, Richardson & Colburn¡¯s practice centers on international trade regulation and customs law. Barnes, Richardson & Colburn began its practice in this area in 1919 and has focused on international trade matters since its establishment. To learn more about the firm, please visit http://www.barnesrichardson.com.

If you are interested in learning more about our service for anti-dumping legal service and/or other legal services, please give us a call at 86-10-8532-1919, or email us at elehman@lehmanlaw.com or mail@lehmanlaw.com, and we would be more than happy to discuss the program with you in more detail.
...

China Law 0 Comment June 29, 2009, 2:50 pm

VETERAN LAWYER URGES COLLEAGUES TO FIGHT FOR THE RULE OF LAW

Vivian Wu
Jun 25, 2009

Zhang Sizhi may be 83, but he is still firmly on the front line of the battle between the mainland's lawyers and the law.

In recent months these battle lines have been laid bare to the public like never before thanks to the case of hotel waitress Deng Yujiao . Accused of murdering a cadre, her plight became a national cause fed by netizens impatient with officialdom and social injustice, and last week she was allowed to walk free, albeit with a guilty verdict.

Mr Zhang said Deng's case was proof that lawyers could play a bigger role in helping the public safeguard their rights, and pave the way for the rule of law. Describing lawyers as "dancers in irons" in a judicial system subject to Communist Party whims, Mr Zhang said they could still achieve more through heightened professionalism, political awareness and strategic thinking.

"Deng's case showed that lawyers could actually become an important force to educate the public with legal knowledge," said Mr Zhang. "By safeguarding the correct implementation of laws, they prove themselves the pillar for a nation's rule of law.

"They are not dissidents nor hostile forces, they are a bridge between the government and the public. By helping people solve their problems, they actually help drain off threats to social stability."

Mr Zhang's career has spanned everything from the establishment of the modern legal system in the 1950s to its total breakdown during the Cultural Revolution, and today's fight for an independent judiciary.

Deng fatally stabbed an official in early May after he reportedly demanded sexual services. As news of the case leaked out - thanks in part to a group of lawyers and bloggers - public sentiment came down firmly on her side. The local government in Badong county, Hubei , began to alter its story, and despite gagging the press, it succumbed to public pressure and allowed Deng to avoid a jail term. However, she was found guilty of using excessive force to defend herself.

"Under the current political system and judicial environment it is impossible for the court to find Deng, an ordinary woman, free of guilt based on the facts," Mr Zhang said.

"I believe the verdict was a result of instructions by senior officials. It was a wise action to soothe public anger, and such an outcome can be regarded as a limited victory for her."

The experiences of two Beijing lawyers, Xia Lin and Xia Nan , who travelled to Hubei to represent Deng, brought the hurdles facing lawyers into the spotlight.

After meeting Deng at a detention centre, Xia Lin said they had discovered crucial evidence - torn underwear - which showed she had been the victim of an attempted rape.

Concerned the evidence could be destroyed by police - a common practice - Mr Xia appealed for public help to track down the items. Local officials reacted by sacking the pair.

"There isn't any article of law that forbids lawyers publicising information about the legal case," Mr Zhang said. "Lawyers should grasp the chance to release information.

"More importantly, the media and the internet played a very important role in bringing public support."

Mr Zhang said throughout his career authorities had commonly prevented lawyers from defending clients in politically sensitive cases.

"Dealing with politically sensitive cases or cases with wide public attention, lawyers should try to avoid politicising them and giving authorities an excuse to cut down the legal channels," he said.

Source: South China Morning Post
...

China Law 0 Comment June 25, 2009, 9:38 am

Leading mass tort Chinese law firm examines redress for Chinese passengers of doomed Air France flight

Lehman, Lee & Xu, a top 3 China law firm, is investigating possible legal recourse for the families of the 9 Chinese victims of the air crash that claimed the lives of 226 on June 1st. The firm, a pioneer in mass lawsuits in China, has been active in obtaining redress for the victims of the 2004 China Eastern Baotou Air disaster. "It is important that the families Chinese citizens are able to efficiently and transparently seek redress for their loss. We have been fighting for over 5 years for redress for the families of the 25 victims of the China Eastern crash in Baotou. We don¡¯t want the Chinese victims of this crash to have to wait so long " states Ed Lehman, Managing Director and long time China resident.

The flight, traveling from Rio Di Janeiro in Brazil to Paris in France had passengers from 33 countries; a true representation of how globalized the world has become. With so many nationalities litigation can be expected for some time to come. "Although the plane was a French aircraft which crashed in international waters with an international passenger manifest" relays Ed. "This will mean litigation in a number of countries as the families of the victims of the tragedy seek legal recourse.

"The most important aspect of this case is to ensure that such an incident doesn't happen again. Holding the relevant parties responsible is a central part of this" states Ed. Our main aim here is to fight for ordinary families. There are a lot of unsavory plaintiffs lawyers out there whose only motivations are their potential fees while at the same time corporations are rushing to limit their liability in these cases. Our goal here is to help the victims of the families make an informed decision on how they want to proceed on a pro bono basis. We have the experience and will operate on a pro bono basis".

The firm has been instrumental in obtaining justice for the families of the victims of the China Easter Airlines crash in Inner Mongolia in 2004. "The case was wrongfully dismissed in the United States and the victims¡¯ families are still pursuing their rights through the Chinese courts. It has taken almost 5 years. We don't want the families of the victims of the Air France tragedy to wait that long. We hope that our experience in that case will help the families in this case"

Anyone interested in more information can contact lehmanlaw@lehmanlaw.com
...

China Law 0 Comment June 23, 2009, 1:52 pm

Trademark protection in the Facebook username registration

Facebook Inc. has announced that beginning at 12:01 am EDT on June 13, 2009, Facebook users will be allowed to create personalized usernames for their Facebook pages, in the form facebook.com/yourname?

There is a risk that some Facebook users will attempt to incorporate third party brands into their personalized Facebook usernames.

To address this potential problem, Facebook has provided an online procedure for brand owners to prevent their trademarks from being registered as Facebook usernames. Information for brand owners is available online at http://www.facebook.com/help.php?page=899. The online procedure for registering trademarks is at http://www.facebook.com/help/contact.php?show_form=username_rights.

The relevant registration form should be completed for each trademark by no later than Friday, June 12, 2009.

For more information about this topic, please contact Wang Donghui or anyone in our trademark department.

Followed is our contact information:

Attorney Wang Donghui: dhwang@lehmanlaw.com
Trademark Department: trademark@lehmanlaw.com
...

China Law 0 Comment June 12, 2009, 1:29 pm

PR-Class actions against Google's Adwords Progarm

Recently in the United States, two class actions have been filed against Google and other famous websites including You Tube and My Space in the Eastern District of Texas which is famous for its speedy processing of intellectual property cases.

Plaintiffs in the 2 actions are PFXS LLC, a small software company in Texas representing all Texas-based owners of federally-registered trademarks and John Beck Amazing Profits LLC in California representing all US-based owners of federally-registered trademarks. The two class action complaints¡¯ allegations are similar. Both allege that Google¡¯s act of allowing Competitors to buy advertising space triggered by ¡°Adwords¡± (keywords) and Keyword Suggestion Tool programs consisting of a registered trademark is to allow Competitors to intercept and divert consumers who were looking for the trademark owner¡¯s website or goods and such use may result in consumer confusion. Based on these points, the plaintiffs seek to hold Google and other defendants directly liable for trademark infringement, as well as contributory trademark infringement, inducement of trademark infringement and related claims.

If all procedural hurdles are cleared and the class actions proceeds well, the potential exists for damages amounting to hundreds of millions of dollars and could affect the rights of all federally-registered US trademark owners. However, these 2 cases remind people to enhance their trademark protections regardless of the eventual outcomes and are important as regards similar such lawsuits in China.
...

China Law 0 Comment June 10, 2009, 5:53 pm

OUTBOUND FUNDS RULE TWEAKED

By Zhang Ran (China Daily)

Updated: 2009-06-10 09:21

China's foreign exchange regulator yesterday announced revised rules relaxing controls on companies' overseas investments in a bid to support more enterprises to venture out of the country.

Domestic companies can use their existing foreign exchange reserves or purchase fresh foreign exchange to fund the operations of their overseas subsidiaries from Aug 1, the State Administration of Foreign Exchange (SAFE) said on its website yesterday.

According to an October 2004 SAFE rule, large multinational companies were allowed to use their foreign exchange reserves to lend to overseas ventures but with heavy restrictions.

"Now, with the new rule, SAFE will allow all companies, including privately owned smaller firms, to purchase foreign currency to fund their overseas subsidiaries," Liu Guangxi, director of SAFE's capital account management department, said.

The new rule states that the total money the parent can lend to its overseas subsidiary should not exceed 30 percent of the former's equity base.

Overseas subsidiaries also will not be permitted to borrow more than the total amount of their investment registered with the administration, from their parent companies.

SAFE said the rule aims to support the overseas expansion of domestic firms, which have had trouble raising funds abroad due to the financial crisis.

The new rules will also simplify approval procedures for outbound investment.

SAFE also said it would establish a risk control mechanism to monitor these outbound investments and ensure the money was being properly used.

"The ease of control on foreign currency outflow will not have any major impact on China's foreign reserves position," SAFE said in the statement.

China has ample cash on hand to support overseas investment, with $2.9 trillion in foreign financial assets, including both official foreign exchange reserves and private holdings, at the end of 2008.

"We had done a stress test, and the maximum possible capital outflow from this new mechanism will be $30 billion," another SAFE official, Sun Lujun, said.

China's outbound investment has been very tepid compared with inflows from foreign investors, but the pace has started to pick up, nearly doubling to $52.2 billion in 2008 from $26.5 billion in 2007....

China Law 0 Comment June 10, 2009, 10:01 am

LEADING VENTURE CAPITAL AND PRIVATE EQUITY LAW FIRM INVITED TO THE 11TH CHINA VENTURE CAPITAL AND PRIVATE EQUITY FORUM

With the business sector in the midst of braving a financial storm of unprecedented scale, foreign legal counsel Charles Chan of Lehman, Lee & Xu attended the 11th China Venture Capital and Private Equity Forum in Shenzhen on June 5 and 6, to evaluate how law firms should adopt and operate on these tenuous business grounds, where this year¡¯s theme being ¡°Enhancing VC/ PE Core Competence and Forging the New Growing Engine for Chinese Economy.¡±

http://blawg.lehmanlaw.com/english//uploadfiles/691_65997.jpg


The Forum analyzed the macroeconomic environment in China at present, evaluated the consequences of the financial crisis, discussed the challenges and opportunities faced by VC/ PE institutions and start-up companies. Panel sessions were held by academic scholars and industry experts on topics that included, inter alia, ¡°The Post-Financial Crisis Era: VC/ PE¡¯s Investment Strategies,¡± ¡°The Way to Become Bigger and Stronger for Chinese Start-up Enterprises,¡± and ¡°The Investment Hotspots in Clean Technology, Medical and Healthcare Industries.¡±


¡°This Forum offered a much-needed platform through which government officials, private investors, entrepreneurs, and professionals of various walks of life can gather and discuss fundamental issues that are not merely unique to the Chinese domestic markets, but also to the world economy at large,¡± Charles noted.

¡°The business world remains in an unstable, if not poor, health condition, although showing pockets of signs of recovery,¡± Charles commented. ¡°There is a thick layer of uncertainly still obstructing our foresight, where businesses are scrambling and searching for the next foothold from which to re-group and reload, and that hopefully will project them well for the years to come.¡±

http://blawg.lehmanlaw.com/english//uploadfiles/692_61682.jpg


¡°As an integral part of our client¡¯s business, we at Lehman Lee and Xu must be acute and sensitive to the changed legal requirements in order to offer tailored and timely legal services to our clients, who depend on our expert advice and recommendations to succeed. In times like these, our alert response is critical,¡± Charles continued. ¡°This Forum is just what the doctor ordered, where ideas could be exchanged, new plans could be hatched, and new strategic alliances could be formed.¡±...

China Law 0 Comment June 9, 2009, 3:50 pm

Exposure Draft of the Interpretation of the Supreme People¡¯s Court on Several Issues about the Application of Laws for the Trial of Labor Dispute Cases (III)

Since the promulgation of the Employment Contract Law of the People¡¯s Republic of China and the Labor Dispute Mediation & Arbitration Law of the People¡¯s Republic of China, the labor dispute cases accepted by China¡¯s labor arbitration institutions and People¡¯s courts at all levels have been rising. Although the Regulation on the Implementation of the Employment Contract Law of the People¡¯s Republic of China has been promulgated after the Employment Contract Law of the People¡¯s Republic of China and the Labor Dispute Mediation & Arbitration Law of the People¡¯s Republic of China, some specific problems still lack the support of more practical rules in the judicial practices.

The Exposure Draft of the Interpretation of the Supreme People¡¯s Court on Several Issues about the Application of Laws for the Trial of Labor Dispute Cases (III), issued a few weeks ago may be of great help in this aspect . The Exposure Draft, in accordance with the Labor Law of the People's Republic of China, the Employment Contract Law of the People's Republic of China, the Civil Procedural Law of the People¡¯s Republic of China, the Labor Dispute Mediation & Arbitration Law of the People¡¯s Republic of China and other relevant laws and regulations based on civil trial practices, gives the interpretations on several issues about the application of laws for the trial of labor dispute cases, including definition of employers, acceptance of cases, scope of social insurance disputes, determination of litigation subjects, confirmation of labor relationship, signature of labor contracts without fixed term, working life and number of times for signing contracts, compensation for competitive restriction, labor relations for foreigners and people from Hong Kong, Macao and Taiwan, definition of labor dispatch entities, definition of higher management, dissolution and termination of labor contracts, arbitration acceptance and time limitation period for arbitration, burden of proof and other issues employees and employers are generally concerned about.

The provisions of the Interpretation on the issues about the application of laws possibly involved in labor dispute cases are more specific, practical and feasible. We believe the Interpretation, based on the opinions through extensive consultation with all parties, will provide a practical and unified legal basis for the people¡¯s courts and labor arbitration institutions at all levels to deal with the increasing labor disputes so as to promote the timely resolution of labor dispute cases around the country and be in favor of maintaining and promoting the realization of a harmonious socialist goal....

China Law 0 Comment June 2, 2009, 8:46 am

WOMAN KILLED TOWN OFFICIAL 'IN SELF-DEFENCE'

Choi Chi-yuk
Jun 01, 2009

The pedicurist in Hubei who fatally stabbed a town official seeking sex acted in self-defence, albeit with "excessive force", police have concluded, and the two deputies who accompanied the official were sacked, state media reported yesterday.
Police in Enshi - the city that oversees Badong county, where the stabbing occurred - said they had completed an in-depth investigation after Deng Yujiao killed Deng Guida , director of the business promotion office in Yesanguan town, on May 10. Xinhua said they had referred the case to local prosecutors.

The county's Disciplinary Inspection Commission of the Communist Party and the Supervisory Bureau of Badong county had jointly decided to dismiss Huang Dezhi and Deng Zhongjia , deputy heads of the business promotion office, Xinhua reported.

The commission reportedly accused Mr Huang, 41, of violating regulations concerning honesty and self-discipline of a Communist Party member when he accepted the invitation to accompany Deng Guida. Mr Huang was blamed for seriously violating the party's disciplinary code and causing an extremely adverse public reaction for trying to compel Deng Yujiao to bathe with him.

Both Mr Huang and Deng Guida reportedly pushed and verbally insulted Deng Yujiao, who worked at the Xiongfeng Hotel in Badong town, after she refused to bathe with them, the authorities said. Deng Yujiao used her mobile phone to turn herself in to the police after the killing.

The committee also decided to kick Mr Huang out of the party. He was placed under detention for further investigation.

The party's vow to "deal with the case seriously" usually indicates that detention or prosecution of those being investigated is forthcoming.

Deng Guida had reportedly tried to force Deng Yujiao to provide him with "special services", a euphemism for sex.

The official slapped the woman, 21, with a pile of cash before attacking her. She produced a knife and killed him.

A nationwide uproar was triggered among millions of internet users when Xian Dai Kuai Bao, a Nanjing-based newspaper, reported the attack and killing on May 12. Deng Yujiao was originally detained as a murder suspect, which sparked further outcry.

In another twist in the case, lawyers representing Deng Yujiao were dismissed and reporters were reportedly beaten and expelled from Badong county.

Meanwhile, the provincial Public Security Bureau has pledged to wage a three-month clampdown on entertainment establishments until late August, China News Service reported.

There was no specific mention that the move had anything to do with Deng Yujiao's case.

But the report warned that a cadre or public servant would not only be treated in accordance with the law, but their records would also be sent to local disciplinary and other departments, if they were found to be connected with any pornography, gambling or drug abuse cases.

Source: South China Morning Post
...

China Law 0 Comment June 1, 2009, 9:28 am

ABA COMMENTS ON THE NEW DRAFT CHINESE ANTIMONOPOLY AND ANTITRUST REGULATIONS

The Regulations on the Prohibition of Acts of Monopoly Agreements and the Regulations on the Prohibitions of Acts of Abuse of Dominant Market Position have been published by the State Administration for Industry and Commerce (SAIC) for public comments on April 27, 2009. They represent an attempt China is making to better regulate its antitrust and antimonopoly system.

The American Bar Association (ABA) has submitted its comments one month later, on May 29, 2009, in the hope that it would be useful for the Chinese regulator to drag from the experience of US lawyers in antitrust and competition law. Comments from the ABA can be reviewed at the following link: http://www.lehmanlaw.com/fileadmin/lehmanlaw_com/Press_Release/abaprcamlsaicdraftregs5-09finalcombo.pdf

We have reviewed the draft regulations and substantially agree with the comments provided by the ABA. In particular, we note that a main finality of having a comprehensive system put in place is to safeguard the competitiveness of the market. We insist that definitions in the regulations should be set forth in detail and that the various articles may not conflict with each other. Further, the provisions should be drafted in such a way that the least space possible is left to interpretation of their content, in order to avoid discretional application from the Courts.

A main point of discussion with regard to the Regulations on the Prohibition of Acts of Monopoly Agreements is the definition of prohibited agreements, and the criteria utilized to determine their existence. It is critical here to have relevant provisions drafted so that agreements that could bring technological innovation are not penalized. Additionally, bidding activities should be unlinked to the Regulations and the tenderer should have the freedom to create its own set of rule, as long as such rules are transparent to all the bidders.

In the Regulations on the Prohibition of Acts of Abuse of Dominant Market Position great attention has to be paid on the definition of abusive conduct, and a mechanism should be introduced to save conducts whose benefit for consumers is larger than the threat to competition (i.e. product innovation). Punishing similar conducts could substantially damage the economy of the country.

Barriers to entry need to be redefined. In particular, duties to protect competitors are not justified under the antitrust principles. Finally, there should be clear distinction between lawful obtainment of dominant position (i.e. through creation of a product well superior than the ones developed by competitors) and abuse of the dominant position.
...

China Law 0 Comment June 1, 2009, 9:20 am

CHINA UNVEILS FIRST SOVEREIGN CREDIT RATING STANDARDS

China unveiled Saturday credit rating standards for the sovereignty entity of a central government, the first sovereign credit rating standards in China, aiming broader participation in global credit rating.

The standards were announced by Dagong Global Credit Rating Co Ltd, one of the first domestic rating agencies in China.

The sovereign credit rating standards would be able to evaluate the willingness and ability of a central government to repay its commercial financial debts as stipulated in contracts, said the company.

The rating results could reflect the relative possibility of a central government to default as a debtor, and the rating is based on the country's overall credit value, according to Dagong.

Elements of credit risks will include the country's political environment, economic power, fiscal status, foreign debt and liquidity, said the company, adding that it judges the credit of a sovereign entity on the basis of a comprehensive evaluation of its fiscal strength and foreign reserves.

Compared with other rating agencies, Dagong pays more attention to the different economic stage of each country, and examines the features of its credit risks in a systematic view, according to Dagong.

Jiang Yong, director of the Center for Economic Security Studies under the China Institutes of Contemporary International Relations, said the financial crisis exposed a risk of the international society relying solely on the credit rating institutions of a single country, which is the largest risk of the world economy.

Luo Ping, head of the training center under China Banking Regulatory Commission, said the launch of the sovereign credit rating standards would help improve the transparency of credit rating information, and would strengthen China's position in the international financial arena.

Original Source: Xinhua...

China Law 0 Comment May 26, 2009, 10:53 am

WORKER WHO FOUND GOLD WINS SUPPORT

By Li Xinran

An airport cleaner has won wide support among Netizens after it was revealed she faces criminal charges and possibly life imprisonment for picking up a box containing 14 kilograms of gold jewelry worth an estimated 3 million yuan (US$439,700) at Shenzhen Baoan Airport, Guangdong Province.

Liang Li picked up a heavy box mislaid on a luggage cart at about 9am on December 9, Guangzhou Daily reported on Monday.

She put the box in an airport toilet for physically challenged people and told her colleagues about her find. Liang also said she would return it to its owner if anyone came forward to claim it.

However, two of her colleagues, who were identified as Cao and Ma, discovered the box was full of packets of gold jewelry and each took a packet home.

Liang, 40, later learnt what happened and took the rest of the jewelry home when she got off work at noon.

The owner, a jewelry company clerk, had called the police at about 9am the same day after losing the box. He said he'd left the luggage cart about 20 meters away while he went to ask airport staff about transporting expensive items.

Plain-clothed airport police officers seized the jewelry from Liang's home as well from Cao and Ma later that day.

Shenzhen police referred Liang's case to Shenzhen People's Procuratorate, accusing her of theft. The charge was not accepted but they asked for a supplementary investigation by prosecutors.

Liang has been held in a detention house for over five months and was reported to be in an unstable mood.

Liang's story found its way to domestic Web portals such as Sina.com. Many Websites conducted online surveys and more than 600,000 Netizens had voted by 5pm on Monday, with 90 percent of them saying Liang was not a thief.

Some also questioned the jewelry company clerk for leaving the box unattended.

Those convicted of theft in China face up to five years in prison, but those found to have stolen very valuable items or large sums can face life imprisonment or even the death penalty.

Some Netizens thought Liang was guilty as she took the box home after discovering what was inside.

Source: Shanghai Daily

http://www.shanghaidaily.com/
...

China Law 0 Comment May 20, 2009, 9:50 am

EU, CHINA TO INK MORE THAN 5 AGREEMENTS ON COOPERATION

(Xinhua)

Updated: 2009-05-19 16:13

There will be more than five agreements signed in the areas of economic, research and climate change cooperation at the upcoming European Union (EU)-China Summit, said Vitezslav Grepl, Czech ambassador to China.

In a written interview with Xinhua on Tuesday, Grepl said that one of the agreements will be on science and research cooperation or the establishment of a joint energy center. He did not specify the details of others.

The annual EU-China Summit, a high-level political consultative mechanism, is to be held on May 20 in Prague, the Czech Republic, which is holding the European Union presidency.

Chinese Premier Wen Jiabao will travel to Prague for the 11th EU-China Summit.

The ambassador told Xinhua that leaders will mainly talk about further EU-China cooperation in overcoming the global financial crisis.

The crisis calls for concerted action at both the European and the international level, Grepl noted, adding that the EU has taken a series of bold measures to restore confidence, stability and sustainability in the financial markets and is interested in further consultations with China aimed at coordinating common approaches to solve the difficulties and making recommendations to improve the international financial system.

Grepl said, China and the EU can together achieve a win-win result in the mutual trade exchange through market openness, liberal trade policy, fair competition and granting of the equal access to opportunities for operators from both sides. Further support to investment cooperation will be also an important engine for reducing the bilateral trade imbalance.

"I am convinced that this point will be also on the agenda of the Prague summit," said Grepl.

The EU is now China's largest trading partner, while China is the second largest of the EU. Trade volume between them grew to $425.58 billion in 2008, an increase of 19.5 percent over the previous year said China's customs.

Likewise, the EU and China also share the view that the international financial institutions should be given a bigger role in monitoring economic risks and that the emerging and developing economies should have more say in these institutions as well, said Grepl.

"I expect them to approve at the highest level the results of the recent second round of the high-level economic and trade dialogue."

The high-level economic and trade dialogue between the EU and China, which was held in Brussels from May 7 to 8, covered trade, investment and small and medium-sized companies, among of others. It was regarded as an important preparatory event for the economic and trade part of the upcoming EU-China summit.

According to Grepl, the leaders will also discuss and endorse the political direction of EU-China cooperation as well as global efforts to cope with climate change - be it energy efficiency, clean energy technologies, environmental protection, the pilot project of near-zero carbon emissions zone and so on.

"These fields are also excellent opportunities to create new jobs and thus maintain social stability and further economic progress," said Grepl.

He said, "Given the important role both the EU and China play in international organizations and in efforts to solve regional crises and face global challenges, the results and perspectives of our mutual cooperation towards peaceful solution of many of them will for sure be discussed as well."

Source: China Daily

http://www.chinadaily.com.cn/...

China Law 0 Comment May 19, 2009, 4:33 pm

« 1 2 3 4 5 6 7 »