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Criminal procedure
As noted above, Art. 41(1) of the TRIPS Agreement requires a system of enforcement in which remedies are available “ which constitute a deterrent to further infringements.” Civil penalties for patent infringement are usually thought of as inadequate. In the new Criminal Law published by the Fifth Conference of the Eighth People’s Congress on March 14, 1997, there is one chapter addressing crimes of intellectual property infringement. The new Criminal Law providing even more legal ammunition for Chinese courts to punish intellectual property transgressions is based on the Article 61 of TRIPS Agreement.
As set forth in arts. 213 to 220 of the Criminal Code of China, criminal sanctions are available only in cases in which the conditions are “ serious” or in which sales by counterfeiters have been “ relatively large.” Neither “ serious” nor “ relatively large” is defined in the Code.
By increasing criminal penalties and reducing the threshold for minimum damages, China will take a great step toward compliance with the TRIPS Agreement. These measures will also lend further credence to the commitment of the Chinese government toward responsible participation in the WTO.
Comments on enforcement
For the last ten years, China has made great advancements in the judicial protection of intellectual property, but there are still many areas that must be improved, such as the quality of judges, uniform application of the law by the local courts, removal of local protectionism, and raising the level of damages awarded[101].
Intellectual property rights are a new concept in the legal system in China and the Chinese courts currently lack the experienced judges in this area.[102] There are also not sufficient Chinese lawyers who have been trained in the area of intellectual property laws.[103]These factors combined with the serious corruption in China make it hard to enforce intellectual property laws effectively[104].As the result, violations of intellectual property laws cannot be stopped in a timely manner.[105]
In addition, China is very large and faces problems associated with unbalanced development of the economy and legislation. Admittedly, IPRs infringement, some of which is serious, is still found in China from time to time in different regions. In some cases, local protectionism is the real culprit.[106] Local governments in China do not necessarily have consensus with the central government in all areas[107]. Instead, local governments may sometimes have different interests than those of the central government. The conflicting interests often lead to local protectionism.[108] Local governments currently lack incentives to enforce the intellectual property law because, even though protection of intellectual property rights will benefit the future, it will impose an immediate cost. For example, many state-owned enterprises are in a difficult situation because their mechanism is not adapted to the market economy and many of them are already technically bankrupt.[109]To rigorously enforce intellectual property law in such a harsh condition for state-owned enterprises will drive many of them out of business and a substantial number of people will lose their jobs[110]. Therefore, enforcing intellectual property law to protect foreign interest with little imminent benefit to the domestic economy may lead to serious consequences: unemployment and social instability[111]. Local governments are unlikely to take such steps.
Furthermore, some procedural problems in handling intellectual property cases that involve both criminal law and administrative law, still in the process of evolution. These problems arise where the intellectual property trial division has exclusive jurisdiction over all intellectual property cases, including those involving criminal law and administrative law. Such problems hope to be resolved gradually with the reform of legislation and judicial practice.
Conclusion
A comprehensive intellectual property legal system in China has been build up and China has finally joined the WTO. It is a good opportunity for China to develop its economic and improve intellectual property rights not only Chinese people but also for foreigners of other countries. It is also a challenge for China to meet competition from outside under the fair environment. After China entry WTO, its rules can bring to china chance and challenge, favorable rules to china mean opportunities but unfavorable rules challenge. The accurate judge for opportunity and challenge relay on having an intimate knowledge of WTO rules and study the rules, use the rules[112].
In the past, Chinese intellectual property law has certain gaps to fill in order to compliance with protection standards provided for by the TRIPS Agreement. Enacting law in China is one thing, while the enforcement of the law is another. The lack of effective enforcement of law in China has been a long-standing problem in its legal reform.[113] As some commentators have pointed[114]out that the main reason behind the Chinese lack of enforcement of intellectual property is the Confucian beliefs ingrained in the Chinese culture, the country’s socialist economic system, the leader’s skepticism toward Western institutions, the government’s censorship and information control policy, and the significantly different Chinese legal culture and judicial system.
It must be said in conclusion that China truly wants to enforce its intellectual property laws and, considering its short history in this field, that what it has already accomplished has not been easy. It must also be pointed out that China is at a stage of transition from the old planned economy to the market economy[115].It will take time for China to complete this transition and become fully adapted to the international business norms. At the same time, with more and more interactions between China and the outside world, in the near future, we believe China will fully understand the importance of protecting private rights, especially the importance of protecting intellectual property rights. At that time, China will be a truly promising market for all countries in the world.
【注释】 Agreement on Trade-Related Aspects of Intellectual Property Rights Apr. 15, 1994, Marrakech Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments- Results of the Uruguay Round vol. 31, 33, I.L.M. 1197 (1994).
General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, T.I.A.S. No. l700, 55 U.N.T.S. l87 .
Uruguay Round Agreement Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994).
See Naigen Zhang, Intellectual Property Law Enforcement in China: Trade Issues, Policies and Practices, 8 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 63, 66 (1998).
See Sanqiang Qu, “ Passive legislation: discussion of development of intellectual property protection” , 2 China and foreign countries law (1999) (in Chinese).
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