The C.L.A.P. Approach to Bringing About Positive Changes†
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Drawing on the content of SINOTALKS.COM In Brief, I recently helped Chinese authorities and other readers of China Daily understand how Guiding Cases, China’s de facto binding precedents, are instrumental in the country’s protection of intellectual property rights and retention of confidence to facilitate economic recovery. This understanding may encourage policymakers in China to consider strengthening their support for a legal culture focusing on treating like cases alike, leading to more judicial transparency and consistency.
This type of engagement and promotion of understanding has guided my three-decade-long career in impartially bringing about positive changes in Chinese law and policy. Today, the SINOTALKS.COM team, which consists of an editorial board and excellent research assistants, is taking another important step to carry out our mission. We welcome the participation of the rapidly-growing SINOTALKS.COM community—nearly 8,000 readers, including yourself, from 80 different countries—so that our joint efforts can produce more results!
The launch of CONNECT.SINOTALKS.COM
As a trusted repository of knowledge about Chinese law and policy, SINOTALKS.COM can do much more if members of our community are able to connect with and learn from each other, ask questions, and exchange professional thoughts that can help solve problems affecting China or even the rest of the world. This strong belief in the C.L.A.P. (Connect, Learn, Ask, and Problem-solve) approach has driven us to launch CONNECT.SINOTALKS.COM. Please register here to create a FREE account, with which you can read questions and comments as well as share your own thoughts about all of the stimulating topics discussed in articles posted on https://connect.sinotalks.com.
Featured Conversations
To begin our discussions on this online global platform, the SINOTALKS.COM team has added multiple comments/questions, including the following:
In SINOTALKS.COM In Brief No. 16, I explain how China found a local regulation unconstitutional. This new development has significant implications for a country whose work on constitutional review has been little understood. I have suggested that a public database be established to allow “exemplary instances illustrating how a piece of legislation […] is brought in line with the Constitution and national laws” to be better publicized.
For similar reasons, wouldn’t it be a good idea to make a public database available to educate all stakeholders about not only the content of Typical Cases but also how these cases have helped guide judges in handling similar subsequent cases? The need for such a public database is even stronger, considering that while Typical Cases have “referential value” that is just below that of Guiding Cases, they cannot be explicitly cited in the judgments of similar subsequent cases (meaning that their positive impact may be overlooked). In addition, the proposed database of Typical Cases could instill more confidence in foreign parties amid China’s efforts to revive its economy (see, e.g., SINOTALKS.COM In Brief No. 15, in which I discuss a Typical Case showcasing how courts in Shanghai recognized and enforced a foreign arbitral award by a special reading of the factual situation involved).
SINOTALKS.COM has published multiple Guiding Cases (in English and Chinese, supplemented with meticulously-prepared explanatory footnotes and appendices) related to biodiversity (e.g., Guiding Case No. 177) and plant varieties (e.g., Guiding Case Nos. 92, 100, and 160). Has the need to quickly recover the economy forced China to re-set its priorities, identifying environmental issues as being less urgent? Or, from another perspective, has the worsening food crisis around the world accelerated scientific processes so that more innovative solutions can be created to allow the farming industry to maximize food production while using minimum natural resources? Doesn’t the provision of more innovative solutions, in turn, rely on better protection of inventions, including new plant varieties? This, therefore, makes China’s growing focus on the protection of rights to new plant varieties highly relevant (see Dr. Mei Gechlik, China’s Growing Focus on the Protection of Rights to New Plant Varieties: Three Guiding Cases and Related Implications).
In SINOTALKS.COM In Brief No. 12, I point out that the Supreme People’s Court’s Plan for the Judicial Protection of Intellectual Property Rights in People’s Courts (2021-2025) clearly identifies the goal to improve “the state of judicial protection of intellectual property rights” by 2025 through various measures, including the development of “the intellectual property adjudication guidance system to which Guiding Cases serve as guides”. The impressive development of intellectual property-related Guiding Cases over the past decade gives optimism about the accomplishment of this goal.
However, empirical research conducted by the SINOTALKS.COM team shows that when handling cases that are similar to intellectual property-related Guiding Cases, many judges in China ignore relevant Guiding Cases cited by parties. To solve this problem, the High People’s Court of Liaoning Province recently made a groundbreaking decision by ordering a retrial of a case in which lower-level courts failed to discuss a Guiding Case cited by a party (see SINOTALKS.COM In Brief No. 10). Do you know whether high people’s courts in other provinces have adopted the same approach?
Guiding Case No. 115 illustrates how China offers a solution to ensure the prompt delivery of judgments in cases involving infringement of intellectual property rights, where holders of these rights need to minimize their losses by stopping the infringement swiftly. The solution consists of a “partial judgment” and a temporary restraining order formally named “行为保全” (“act preservation”). Has this useful solution been applied in disputes beyond infringement of intellectual property rights?
My team and I look forward to reading your comments! If you have any questions about CONNECT.SINOTALKS.COM, do not hesitate to contact us: contact@sintoalks.com.
† The citation of this article is: Dr. Mei Gechlik, The C.L.A.P. Approach to Bringing About Positive Changes, SINOTALKS.COM, In Brief No. 17, July 20, 2022, https://sinotalks.com/inbrief/2022w29-english.
The original, English version of this article was edited by Nathan Harpainter. The information and views set out in this article are the responsibility of the author and do not necessarily reflect the work or views of SINOTALKS.COM.
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