Being Detained in China? A Lawyer Can Help You

When a foreigner or his relative is detained by PSB in China, he must be stuck with panic and doesn’t know what to do. For most foreigners, the only way they can figure out is to seek help from his country’s embassy or consulate. Undoubtedly, that is a right way and indeed the first thing you need to do if you are stuck in such unlucky situation, however, this is not enough to protect you or your relative. You still need a lawyer to make defense for you, provide professional legal service and protect your rights to trial and other lawful rights. Currently, one of our clients’ relative was deep in such dilemma and he found us through his consulate. It is really good for his relative that he can have a lawyer as soon as he was detained. Many times, when a client finds us, his poor relative has been detained or arrested for several months, and the lawyer miss the best time to save him out or protect his lawful rights.

Why you must have a lawyer in such situation? One important reason is that according to Chinese Criminal Procedural Law, only a lawyer can execute some rights, such as meeting the suspect, reading and copying the case files, collecting evidences, without check and approval of the relevant authorities. And a lawyer can protect you from being extorted by the policeman, from bullied by other suspects, apply release on bail or make a defense for you.

Different from some western countries, the detention period before the trial in China is comparatively long, sometimes may last for several months or even years, and there is a low possibility of release on bail, especially for a foreign suspect. No matter whether you will be released for non-guilty finally, during the long period in detention center, a lawyer is really a must.

Published by Mike Wang on July 29th, 2016 tagged China News | Comment now »

China Design Patents: Learn from Apple’s Pain

You may have heard that Apple has been involved in a legal dispute with a small Chinese smart-phone manufacturer, over the design of the iPhone 6. The iconic gadget which helped to define the smart-phone era has been labeled an IP infringer.

Shenzhen Baili is a local Chinese smart-phone manufacturer. It owns design patent ZL201430009113.9 for 100C, its smart-phone model. This design patent was applied for in January, 2014. The iPhone 6 was not released until September 2014. Based on he design patent, Baili applied to the Beijing Intellectual Property Office to stop Apple from selling the iPhone 6 and iPhone 6 plus in Beijing. On 10th May, Beijing Intellectual Property Office found that Apple’s iPhones looked too similar to the 100C and therefore infringed on the design patent registered by Shenzhen Baili. As a result of the judgment, Apple was ordered to stop selling the iPhone 6 and 6 Plus in Beijing. As a response, Apple filed an administrative lawsuit before the Beijing IP Court. Because of this appeal, the decision is not final and iPhone 6 models are still available for sale in China now.

The underlying logic of Beijing Intellectual Property Office is that certain differences do exist, such as the shape of button and the position of in-built camera; but they are either too minor for consumers to really take it seriously or too function-oriented to be deemed as decorative, the core for a design. Any design that is purely functional shall not be factored in when it comes to a design patent. The lack of distinctive differences resulted in Apple’s infringement of Baili’s design patent.

From some, this ruling may not be convincing. For instance, the court deemed iPhone’s iconic round button at the bottom as a functional part. Granted, this button is one of the most powerful functional parts of an iPhone; it could also be an integral part of its look, particularly when compared to other smart-phone designs.

Though the final ruling is still pending, its impact could be huge. As pointed out by Bloomberg, while the decision covers only Beijing, future lawsuits against Apple may refer to the case as a form of precedent, even thought precedent does not officially exist in China. Though China does not follow stare decisis and precedent is not legally binding, still it may potentially influence the outcomes of litigation elsewhere in China as prior similar cases may be submitted as evidence for the consideration of a new court. If there is a lesson to be learnt from this legal dispute, probably it is that design patent should also be incorporated in your patent layout and get your strategic designs patented first before anyone else.

Published by Crys Zheng on July 28th, 2016 tagged China News | Comment now »

The duties of legal reps

Published by Christopher Fung on July 27th, 2016 tagged China News | Comment now »

Legal reps

Published by Christopher Fung on July 27th, 2016 tagged China News | Comment now »

Watch out for the tigers, they are not the Hello Kitties

During recent days, a piece of CCTV episode is being rapidly spread throughout internet. It was recorded on the last Saturday, spotted that a couple was self-driving in the Beijing Badaling Wildlife Park for sightseeing together with their child and the wife’s mother. However, during their visit around the tiger area in the park, the young wife got off their car for about a few seconds, and in a meanwhile, a wild, strong tiger suddenly appeared at her back and grabbed her backwards to the side of the road until she was finally pulled out of the CCTV pictures.

The tragedy happened when the husband and the mother both rushed out of the car for trying to save the young lady’s life from the tiger’s mouth. Although the video does not cover the bloody scene of the fighting process, the mother was finally bitten to death by another tiger when she was striving for protecting her daughter, and the daughter was severely injured, and for now, she is still under the medical treatments, and it ramins unsure about whether she would recover or not.

Hot debate arises regarding who should be liable for the death and injury. As lawyers, we should speak of laws and regulations. If the park can prove that they have fulfilled their management duties, such as what have been reported, e.g. posting warnings, building up and maintaining the defense equipments, having safeguards supervising the area, forbidding visitor to open the car doors and windows or even get off the car, etc., the park shall not be liable for such death and injury caused by its wild animals. It was the family members, as visitors, chose to travel in that park, thus they must obey all the rules and regulations issued and suggested by the park. And if any animal assault occurred due to the breach of rules, the violator should bear certain liabilities with no doubts.

When we saw in the video that the old mother jumped out of the car and ran after the trace of the tiger without hesitation, we eulogized the great maternal love. Ironically, it was the young lady’s babyism forfeited her great mother’s life.

It would be too naive for someone to think that the foregoing would be the only, typical thing happened in the world. The truth is, there are many similar tragedies taken place in different countries due to the violation of certain rules. Katherine Chappell, an American film visual effects editor who worked on Game of Thrones, was visiting Johannesburg’s Lion Park when a lion lunged through the window of her vehicle, which she had opened to lean out and take photographs, against park rules, and bit her on the neck. Chappell died in Lion Park of her wounds before the paramedics arrived. A man from Switzerland was bitten by a brown bear when he was visiting the Bern Municipal Zoo and was climbing up the bounding wall to get closer to the bear.

We call such pity tragedies in Chinglish as “No Zuo No Die”, which means “you would probably live in a better life if you do not borrow troubles for yourself”. Just like the song expresses in below MTV, there are so many dumb ways to die, and it is all about following certain rules to live in a better life. Be careful, because your contempt of rules would lead to the dumbest way to die.

Published by Crys Zheng on July 26th, 2016 tagged China News | Comment now »

So you want to Host a Website in China. Here’s what you need.

So you want to Host a Website in China. Here’s what you need.

The Internet Content Provider (ICP) license is a permit issued by the People’s Republic of China (PRC) Ministry of Industry and Information Technology (MIIT) at the provincial level. The ICP license enables PRC-based websites to operate in accordance with the law. According to Article 7 of the PRC Telecommunications Regulations, no organization or individual may engage in telecommunications business activities without obtaining an ICP license. All companies hosting internet content shall post their ICP license numbers or record-filing numbers, as visibly as possible, on the home pages of their websites.

Legislative History

This license system was established by the People’s Republic of China’s Telecommunications Regulations, promulgated in September of 2000 and revised in 2014. Additionally, detailed rules are provided in the Administrative Measures for Internet Information Services, effective since September 2000.

Classifications of ICPs and the Corresponding Permit/record-filling System

ICP licenses are classified into 2 categories: Commercial and Non-Commercial.

Commercial ICP licenses are for entities that provide compensated services online, think online subscription services. The key considerations are that money is exchanged and the online content or service is exclusive for subscribers. There are 2 subclasses for this type of license. The first is for basic services and the second for value-added services. Basic and value added services are described in detail within the regulations.

Non-Commercial ICP licenses allow entities to provide information to the public through the hosting of a website. Interestingly, a “Non-Commercial” ICP license is no obstacle to receiving payments in exchange for offline products or services. Retail businesses may use Non-Commercial ICP license to advertise products online and accept payment from customers in exchange for real world delivery of the product or service. As long as the information provided online, the product advertisements, is free and available to the public, a Commercial ICP license is not required.

Application to obtain ICPs and Examination

As mentioned above, Commercial ICPs are required to apply for a license, requiring approval of the relevant provincial authorities; while Non-Commercial ICPs are only required to make a filing with the local government.

  1. Commercial ICPs Providing Basic Services

In order to obtain a Basic Commercial ICP license, the following materials are required as part of the application:

  1. Corporate governance documentation, including Certificate of Incorporation and official documentation indicating that no less than 51% of its equity is held by the State;
  2. Demonstration of adequate funds and personnel to operate a website;
  3. A place of business and corresponding resources;
  4. Evidence of the applicants’ good reputation or their capability to provide long term services;
  5. A feasibility study report;
  6. A business plan and a relevant technical plan;
  7. An IT security plan; and
  8. If required, the written consent of the relevant Government departments.

For those providing services within a single province, Registered Capital is required to be at least 100 million RMB. For those operating across more than one province, Registered Capital must be at least 1 billion.

  1. Commercial ICPs Providing “Value-Added” Services

In order to obtain a Value-Added Commercial ICP license, the following materials are required as part of the application:

  1. Proof of adequate funds and personnel to operate a website;
  2. Corporate governance documentation including Certificate of Incorporation;
  3. An IT security plan;
  4. A business plan;
  5. Evidence of the applicants’ good reputation; and
  6. If required, written consent from certain Government departments.

For those providing services within a single province, Registered Capital is required to be at least 100 million RMB. For those operating across more than one province, Registered Capital must be at least 10 million.

Once these materials have been submitted, the application will be considered. The approval authority will have discretion as to whether to issue the license or not. The determination of the adequacy of provided documentation is solely determined by the reviewing officer.

  1. Non-Commercial ICPs

In order to obtain a Non-Commercial ICP license, the following materials are required to be submitted to the provincial Telecommunications Administration Authority:

  1. Corporate governance documentation including Certificate of Incorporation;
  2. List of relevant URLs; and
  3. For certain services, government consent is required.

Once those materials have been submitted and approved, the Provincial Telecommunications Administration Authority will issue an ICP number.

Published by Susanna Song on July 25th, 2016 tagged China News | Comment now »

Is the Chinese Supreme Court’s Ruling Final?

The Supreme Court is the highest level of court in China, and many people, even foreign lawyers take it for granted that the decisions, rulings, or judgments made by the Supreme Court are final and can’t be changed. When a litigant receives the judgment made by the Supreme Court which is found against him and he has no way to appeal to a higher court, it seems that he has to admit that he lose the case finally. This is, however, definitely not true in China. We still have a chance to overturn the result. That is what exactly I am doing now, trying to change a ruling made by the Supreme Court on behalf of our client.

According to provisions of Chinese civil procedure law and Chinese administrative procedure law, where the Supreme Procuratorate finds that a legal effective judgment or ruling made by the Supreme People’s Court, at any level falls under any of the certain circumstances provided in an article of the said two laws, the Supreme Procuratorate shall lodge an objection with the Supreme Court thereto. The said circumstances have been listed clearly in one article of the laws which are as much as 13 kinds. Generally speaking, they can summarized to four circumstances: one, the litigant get new evidence to prove the facts recognized by the court are not true; second, the court made material mistakes in finding the facts or applying the law; third, the court made procedural mistakes which infringe the litigants’ core procedural rights; fourth, the judge or court clerk took bribery or did under table deal.

You see, don’t admit failure too early, you still have a chance to change all, although the rate of overturning the final judgment is terribly low, but it is better than zero.

When you decide to try the procuratorate way to change the final result, you may need help from a lawyer. I used to work in the procuratorate for five years and know clearly that there are many obstacles in the procedure for a layman. For example, before you file an application for review to the procuratorate, you must file the application of retrial to the corresponding level of court. Only if your application of retrial is overruled by the court, or the court doesn’t retry within legal period or the retrial result is definitely wrong, you can file the application for review to the procuratorate.  What’ more, there are time limits for the application. Under some of the certain circumstances, six months after the judgment enters into effect.

Your application for review will surely be accepted by the procuratorate, as long as you submit required legal documents, but acceptance doesn’t mean the procuratorate will support you. The procuratorate will examine all the evidence you submit and review the original judgments, if they decide to support you, they will lodge an objection against the court, and the court must appoint different judges to retry the case under such circumstance. Now you have a chance to change all.

Published by Mike Wang on July 22nd, 2016 tagged China News | Comment now »

Choosing Place of Arbitration: Don’t Go There

When entering into an agreement with a Chinese company, a strong arbitration clause is essential. Part of constructing the arbitration clause, will be deciding on a place of arbitration. The place of arbitration is the location at which both parties agree to hold the arbitration proceeding, and generally is not required to be in a city the Arbitration Association is located. For example, if China International Economic and Trade Arbitration Commission (“CIETAC”) is agreed by both parties as the arbitration association, according to its rules, the place of arbitration could be any place agreed by both parties, and is not limited to those cities in which CIETAC has established an office (Beijing, Tianjin, Shanghai, Chongqing, or Hong Kong). This means the arbitration may be agreed to be held in New York, London, Paris, or Timbuktu, as long as the parties agree.

While it may appear to be more convenient for a USA or Europe based company, there are some major consequences for choosing a location outside of China to serve as the place of arbitration.

Firstly, the procedural matters of the arbitration will be governed by the applicable Arbitration Law for that jurisdiction in addition to CIETAC’s arbitral rules. If there is a conflict between CIETAC’s rules and the local Arbitration Law, the Law will prevail. Foreign parties may prefer this as they are more familiar with procedural law in their home jurisdiction. By the same token, Chinese parties would in general prefer Chinese Arbitration Law apply as to procedural issues.

Though CIETAC is a Chinese Arbitration Commission, an arbitral award issued by CIETAC in connection with an arbitration proceeding which took place outside of the PRC, would be treated as a foreign arbitration award in the eye of the Chinese judicial system. This means the award could not be enforced in Chinese courts directly, but would have to utilize the enforcement mechanisms provided for under the New York Arbitration Convention of 1958. This is true even if PRC domestic law is agreed by the parties to govern the substantive issues of the arbitration.

The place of arbitration also determines the competent court will have jurisdiction to review and revoke any arbitration award. If a place outside of mainland China is chosen, Chinese courts will be unable to perform an independent review of the award.

In China, stating a place of arbitration is not required for an Arbitration Agreement to become valid. However, doing so as part of the initial agreement eliminates a potential point of disagreement in any future dispute. Attention should also be paid to additional costs, which may arise when setting arbitration in a city in which the arbitration commission does not have an office. There may be costs associated with finding an approved arbitrator in the chosen city, or in connection with transportation costs for an arbitrator from the commission. Additionally, there will likely be costs in connection with securing a neutral facility in which the arbitration proceed will take place.

We generally recommend to our clients to name a place of arbitration in Beijing, or in Shanghai. Arbitration commissions and arbitrators in these cities are typically very professional and quite used to handing arbitrations involving a foreign party.

Published by Jacob Blacklock on July 21st, 2016 tagged China News | Comment now »

ABCs for China’s Design Patent: Get Protected, Not Hijacked!

The design protection system was established in China in 1985. Since then, designs are protected in accordance with PRC’s Patent Law. “Design” in PRC’s Patent law refers to the any new design of a product, including shape, or pattern or a combination of color, shape and pattern of a product. Unlike traditional patents design patents are not required to be inventive, however they must have a unique aesthetic “feel” and be fit for industrial application. A design patent is protected for 10 years from the date of filing.

To apply to patent a design, the applicant shall submit an application, pictures or photos of the design, a brief introduction of the design, along with other required documents. The pictures submitted by the applicant should clearly show the product design to be patented. After the application is filed, the patent office will carry out preliminary examination, which is limited to whether or not the application includes all the documents, and does not include design will have sole ownership of that design, and priority rights in the event of

substantive review of the patent or comparison to previous design patents. Assuming you have prepared your design patent application properly, you have a good chance to get a design patent in China.

Design patents are of importance because they help consumers identify the source of products. This enables them to make a quick assessment on the basis of their overall impression of the associated brand. Though this assessment can be arbitrary, it is of increasing significance in an increasingly fast paced society, where fewer and fewer people spend time performing thorough research. In this regard, design patents play a role similar to a trademark. Think about the shape and the pattern of Coca Cola bottle. Every time people see this representative bottle, they associate it with Coca Cola. To a large extent, the design of bottle has been integrated into the branding of Coca Cola.

China follows the first-to-file rule in reviewing and approving design patents. That means the first to file a particular any dispute.

Published by Jacob Blacklock on July 19th, 2016 tagged China News | Comment now »

LEHMAN, LEE & XU Recognized Two Consecutive Years by Global 100 for Excellent China Advertising Law Practice

LEHMAN, LEE & XU, a top-3 Chinese law firm, has been recognized by Global 100 for excellence in its China Advertising Law practice. This marks the second time LEHMAN, LEE & XU has been recognized, as it was also named in 2015. Every year, Global 100 selects 100 of the World’s leading firms and individuals through a voting process involving readers in over 163 countries worldwide. After votes are tallied, an independent panel of judges will assess the strategic nature, the complexity, the scale and the innovativeness of work conducted. LEHMAN, LEE & XU has emerged from this stringent selection process as a distinguished organisation offering innovative international quality services for global multinationals.

LEHMAN, LEE & XU was founded by Mr. Edward Lehman and two Chinese partners in 1992 as one of the first private law firms registered in the People’s Republic of China. The firm has developed a thriving corporate commercial legal practice serving foreign and domestic MNCs and SMEs. Mr. Lehman, a legal professional in China for the past 30 years, continues to serve as Managing Partner of the firm. Mr. Lehman has long been the most recognized lawyer practicing Advertisement Law in China, he was the first foreign lawyer to work at a Chinese law firm, and the first foreign lawyer to manage a licensed Chinese firm. Mr. Lehman has been recognized by China’s State Administration of Foreign Experts Affairs as a Foreign Expert in Law, and he has served as legal advisor to China’s CCTV for the past 14 years.

Upon learning of the award Mr. Lehman said, “I am very proud of our exceptional team of China Lawyers. Their dedication to excellence has made this possible. Advertisement Law in China can be strict, and it is important for our clients to feel that their operations in China are protected.”

The Firm’s Advertisement Law practice is a core component of its focus on Corporate Commercial Law. The Firm advises on China’s Advertisement Law, including review and assessment of client advertisements for compliance with Chinese laws and regulations, advising on corporate promotional contests, and advising as to liabilities for potential violations of China’s Advertisement Law.

LEHMAN, LEE & XU is also a leading Intellectual Property firm with in-house Trademarks and Patents specialists. The firm is the only local Chinese firm to have an in-house Visa and Immigration practice. As a local Chinese law firm with international management, LEHMAN, LEE, & XU is well placed to address the unique needs of all its clients in the context of the swiftly changing Chinese legal system. The firm is founded on the principle of providing expert China based legal services while meeting our client’s expectations regarding international standards of professionalism.

The firm may be contacted during office hours in Beijing at +86-10-8532-1919, and by email at mail@lehmanlaw.com.

Published by Jacob Blacklock on July 19th, 2016 tagged China News | Comment now »