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Trial and Judgement of Intellectual Property Cases in China
Introduction
    
    It was in the Chinese-Foreign Joint Venture Law, which was passed and implemented in July 1979, that intellectual property was introduced for the first time in the law since the founding of the Republic of China.?Hereafter, the Trademark Law (1982), the Patent Law (March 1984) and the Copyright Law (1990) were passed, and the country saw a comprehensive protection of intellectual property only since then.
    
    In 1993, Beijing courts were the first to set up intellectual property tribunals in the intermediate and high people’s courts. Soon afterwards, other provinces followed suit as courts in Shanghai, Tianjin, Guangdong and Jiangsu, also set up special tribunals to try intellectual property cases. Today, this kind of tribunal has been classified into the third civil tribunal due to a re-organization ordered by the Supreme People’s Court. Prior to 1993, intellectual property cases were accepted and heard by civil tribunals (mainly those of copyright disputes) and economic tribunals (mainly those of trademark right and patent disputes) of the people’s courts. According to the Supreme People’s Court’s revised thinking on “large civil” judicial form②, since 1993, intellectual property tribunals, which met the need of trial of IPR were incorporated into civil tribunals again and assigned to accept and hear IP civil cases alone. Administrative and criminal cases concerned with intellectual property were accepted and heard by administrative and criminal tribunals, respectively③. The benefits such “reforms” is still difficult to judge now and its discussion is outside the scope of this article.
    
    The first national working conference on reforming the trying style since foundation of the PRC was held in July 1996. In June 1998, “Certain Regulations of the Supreme People’s Court on Reform of Civil and Economic Trying Style” (hereafter called “Certain Regulations”) was issued. In October 1999, the Supreme People’s Court issued “Five-year Program of Reform of the People’s Courts” (hereafter called “Five-year Program”).
    
    Such reform is obviously necessary. Experts have pointed out that, at least in the field of civil jurisdiction, not only China, but also many countries and regions in the world are carrying on powerful and dynamic reform almost simultaneously.?The goal pursued by these reforms (internal motive force) lies in seeking realization of the just.?
    
    In recent years, reform of civil trying style in China mainly focuses on the following four aspects: adhere to open hearing; strengthen the function of court hearings; strengthen the liability of the parties to provide evidence and strengthen the duty of the collegial penal or the single judge.? 1
    
    Reform of the trying style of intellectual property cases is a component part of the above-mentioned reforms. Some of judges who try intellectual property cases and were contacted by the author are enthusiastic for this reform with high aspiration. Thanks to their support, a series of documents aimed at regulating trial have appeared.… Documents include Certain Opinions on Reform of Trying Intellectual Property Cases and Certain Opinions on Standards of Sending Back for Retrial and Amending a Judgement issued by the High People’s Court of Beijing Municipality, the Rules of Evidence and the Rules of the Collegial Penal Discussing Cases by the Second Intermediate People’s Court of Beijing Municipality and the Notice on Appearing in Court by the Second Intermediate People’s Court of Shanghai Municipality. These documents are good examples of the kind of characteristics found in trying intellectual property cases and play a good role in regulating trials of intellectual property cases in the courts under their jurisdiction.
    
    This article will describe, analyze and comment on the trial and judgment of intellectual property cases in China and put forward the author’s own opinions and proposals in the light of judicial interpretations of the Supreme People’s Court on reform of civil trying style and documents of local people’s courts on trial of intellectual property cases.
    
    1. Trial of intellectual property case: from putting on file to winding up
    
    (1) Putting a case on file
    
    Like any other kind of civil cases, the parties of intellectual property cases who bring a lawsuit to the people’s court pursuing resolution of disputes must go through at first the step putting their cases on file. Putting on file is primary and necessary for a litigation to occur.
    
    The People’s Court, having receiving the party’s bill of complaint or oral prosecution?, shall examine whether the prosecution should be put on file. In addition, the Court will examine whether this prosecution conforms to relevant regulations of the civil procedural law, such examination also involves whether it conforms to regulations of the Supreme People’s Court on jurisdiction of intellectual property cases and specific regulations made by local high people’s courts on jurisdiction of cases in accordance with the civil procedural law and relevant regulations of the Supreme People’s Court as well as circumstances of the regions under their jurisdiction. Generally speaking, all patent and trademark right cases and cases of disputes on copyright shall be accepted and heard by intermediate people’s courts.
    
    Apart from level jurisdiction which is determined on the basis of kind of the case and amount of the object, there are also regulations on regional jurisdiction. According to the civil procedural law, the case of civil dispute caused by tort shall be under the jurisdiction of the People’s Court where the tort occurs or where the defendant has a domicile. According to Article 29 of the Opinions on Certain Problems on Applying the Civil Procedural Law issued by the Supreme People’s Court, the place where the tort occurs involves that where the tort is conducted and where result of the tort occurs. The place where result of the tort occurs shall be understood as the place where the factual result directly caused by the tort occurs.?
    
    As to the case accused of selling infringing objects, if the plaintiff does not sue against the seller, but only against the manufacturer, and the place where the infringing objects are manufactured is not identical to that where they are sold, it shall be under the jurisdiction of the court where the infringing objects are manufactured (usually also where the defendant locates); if the plaintiff sues against the manufacturer and the seller as joint defendants in the place where the infringing objects are sold, the court where the infringing objects are sold shall have jurisdiction.?
    
    With respect to the party involved in the lawsuit, he chooses the court of putting on file mainly in consideration of his own interest. For example, the party may choose the court which he considers convenient to get to and which he considers can judge justly, and chooses the intermediate or high people’s courts which may have considerable influences.
    
    (2) Provide evidence
    
    After putting the case on file, the party has the liability to provide evidence for his claim.?This is also following from the principle “he who claims must also provide evidence” on the liability of providing evidence. To this, “Certain Regulations” and “Five-year Program” also give regulations. When strengthening the party’s liability of providing evidence, “Certain Regulations” stipulates that, the People’s Court shall inform the party of the liability to provide evidence centering on his own claim, defines the scope of the people’s court investigating and collecting evidence and the problem on bearing legal result in case the people’s court fails to collect evidence after investigation.
    
    “Rules of Evidence” of the Second Intermediate People’s Court of Beijing Municipality stipulates that, the people’s court shall examine the party’s evidence in accordance with the law, evidence shall be exchanged between the two sides and be fully open except those involve state secrets and the party’s commercial secrets. 2
    
    (3) Preparation before the hearing
    
    Preparation before the hearing is quite important, on which both “Certain Regulations” and “Five-year Program” make regulations. Its main content is that, it enables both sides to know thoroughly their own procedural rights and obligations before the hearing, fully exchange evidence and strictly delimit members of the collegial penal or the single judge contacting separately with one party or his deputy before the hearing. The advantage of exchanging evidence before the hearing is to enable the parties to obtain information and evidence relevant to the case, clarify disputed focuses of the two sides, prevent procedural surprise attack of the parties and ensure that the court tries cases with concentration and efficiency and judges justly.
    
    In practice, the intellectual property tribunals in Beijing, Shanghai, and so on, usually call the parties to hold a meeting together before the hearing or hold a preparatory hearing. The judge presides over defining exchange of evidence, determining disputed focuses of the two sides, making clear whether the defendant counterclaims and defining witnesses in court and the date on which the court sits.
    
    The Rules of the Preparatory Procedure Before the Hearing formulated by Sichuan Chengdu City Intermediate People’s Court? stipulates that, the court has the right to stop act of the parties abusing evidence-exchanging procedure and deliberately delaying the litigation (Article 22). The party who has not joined exchanging evidence shall not refuse to question the evidence provided by the other party in court giving the reason that the evidence had not been exchanged. As to the evidence provided temporarily by one party which had not been exchanged, the other party may refuse to question by reason of having not been exchanged and has the right to apply for postponing the hearing and require the other party to bear relevant fees (Article 24). The secretary shall record all the activities in the meeting before the hearing.
    
    (4) The hearing
    
    “Certain Regulations” stipulates in detail the court investigation, which is divided into eight steps from the plaintiff reading the bill of complaint to the end of questioning the evidence. “Certain Regulations” also stipulates that, before the end of the court investigation, the presiding judge shall sum up the facts defined in the court investigation and the disputed problems of the parties. Judges shall lead the parties to debate centering on the key points of the disputes. In the course of the court debate, the judge or judges shall not express opinions on nature of the case and liability of the parties and shall not debate with the parties.
    
    These stipulations place the judges in the position of “hearers” and “judges of procedure” who are independent from the two sides and only manage and control the hearing procedure. In recent years, hearings of some intellectual property cases have been broadcast on the spot directly or by video to the public through TV media, which is one content of open trial in the reform of civil trying style. However, it must be pointed out that TV “live” may interfere with the normal procedure of the trial. For instance, when one party raises doubt upon to the other’s capacity as a litigant, and such doubt has factual foundation, the hearing should be suspended. Since the show-time is fixed, the chief-judge is not outside his or her jurisdiction if he or she insists on hearing the case, thereby breaking the law. Though at present there are disputes on such style of “live” or “broadcasting by video”, it at least provides to the common public chances to contact live course of hearing.
    
    (5) Verification and definition of the evidence
    
    There is no special evidence law in our country, and the Civil Procedural Law does not clarify stipulations on standards of proof of civil cases. Therefore, the “Certain Regulations” makes nine items of regulations on verification and definition of evidence, which in some sense has established basic principles of evidence in our civil judgement in the form of judicial interpretations.
    
    Usually verification and definition of evidence are completed in the course of hearing. According to “Certain Regulations”, the evidence having been questioned in the court which can be defined immediately, should be defined immediately. This raises the high requirement considerably for a special quality of the judge who is undertaking the trial, that is, make a quick judgement after providing and questioning the evidence and define or not define relevant evidence.
    
    In the trial of intellectual property cases, usually parties provide more evidence and the circumstances are more complicated, so they raise the requirement of the experience of the judge undertaking the trial. Some may point out that, “Certain Regulations” stipulates on verification and definition of evidence, of which a specific article gives the judge the right of free evaluation of evidence to some extent.?3 this article is perhaps helpful to motivate subjective activity of the judge. However, Article 23 of “Certain Regulations” should have been a mandatory article, but it is defined as a flexible article for some reason. Article 23 is as such, the evidence provided by one party can be defined through synthesizing circumstances of the whole case if the other party fails to provide corresponding evidence to refute it. The author considers that, such evidence relevant to the case, “should” be defined, but not “can” be defined. Amending the flexible article as a mandatory one can strengthen liability of the parties providing evidence and reduce casualness of the judge defining evidence.
    
    (6) Collegiate panel meeting
    
    Article 10 (1) of the Organic Law of the People’s Courts of the PRC states: “The trial in a people’s court shall be taken in collegiate court system”. Article 31 of “Certain Regulations” stipulates: “members of the collegial panel shall jointly take part in trial of the case, and jointly be responsible to the facts, evidence, nature, liability, application of law and result of the case.” Article 20 of “Five-year Program” stipulates: “on the basis of comprehensively carrying out the system of selecting presiding judge, except those vital and difficult cases which the collegial panel submits to the chief of the court for submitting to the trial committee to discuss and determine, all the cases shall be tried and judged by the collegial panel, and the chief of the court or tribunal shall not change decision of the collegial panel by himself.”
    
    Seen from the two documents of the Supreme People’s Court, drafters of the documents obviously have realized the function of course of collegial trial and that of the collegial panel, even faintly made people feel that at present there exist serious problems in respect of the course of collegial trial and respecting judgement made by the collegial panel.
    
    In practice, trying intellectual property cases in China, the collegial panel seldom adopts the form of a single judge and usually is composed of three or five persons. Usually, the court appoints one judge to undertake trial and judgement of the case. In the course of trial of the said case, the other two judges (if this is a three-person panel) and a secretary must also be provided. The report of winding up and the judgement are usually completed by the undertaker, but before and after the hearing, the undertaker must call together the other members of the collegial panel to collectively discuss the case and work out an opinion (formation of this opinion usually adopts the form of voting and is defined in accordance with the principle “the minority shall be subordinate to the majority”), which is just so-called “collegial trial”.
    
    Under some circumstances, such “collegial panel” is only a form, collective discuss turns into monodrama acted by the undertaker by himself and the other members of the collegial panel only echo his opinion. Since the documents of the Supreme People’s Court have entrusted the collegial panel so important function, but failed to make regulations on working style of the collegial panel and duty of members of the collegial panel, this can not make people not to doubt: how to avoid “collegial trial” being merely a form, and whether justice of the judgement made by the undertaker by himself can be fully ensured.
    
    (7) Write judging documents
    
    Article 13 of the “Five-year Program” stipulates: “accelerate the pace of reform of judging documents and improve the quality of judging documents. Emphasis of the reform is to strengthen analysis and attestation of the disputed evidence in the questioning procedure, and increase reasonableness of the judgement, through judging documents, not only record course of the judgement, but also make public reasons of the judgement, thus to make judging documents become carriers to display image of judicial just to the public and lively teaching materials to carry out legal education”.
    
    The judging document is a result expected by relevant parties, and is also the last step of the case from putting on file to winding up. Having passed a series of judicial procedures, the judge undertaking the trial needs such a carrier to record the course of the judgement and state his opinions on the judgement. With the help of a judging document, dispute of the parties is ended by an exterior binding decision. “Five-year Program” emphasizes two points to judging documents, one is to be reasonable, and the other is to be of social meaning.
    
    With respect to some of the recent judging documents of intellectual property cases we have seen, the proportion of reasoning has been obviously increased. Some judges undertaking the trials leave their own mark in the judging documents consciously or unconsciously.
    
    Such conscience action of “leaving a mark” should be affirmed. It at least has showed open and upright attitude of the judge himself. Some researchers of law just obtain legal knowledge by researching such kind of judging documents, and many legal specialists also obtain fame by commenting on such kind of judging documents thus to exert their influences on relevant legal affairs. However, it should be pointed out that, under most circumstances, those legal documents do not present the whole facts, and do not represent the whole opinions of the judges, so they are limited. Sometimes, the impression that the readers gain from judging documents is quite the contrary to what is fact.
    
    2. Behind the judgement
    
    (1) Function of the judgement
    
    At present, the main criticism to the judicial judgement of our courts is that, when the judgement is formalized, the reasons of the judgement are too simplistic and lack legal proofs and reasoning.? Such criticism is undoubtedly justified, but it only scratches the surface of the problem and does not endeavor to dig deeper into the essence of the problem. If each party is satisfied with the judging result obtained, who will mind the form in which the decision was given.
    
    The question arising from this is that, for whom the judgement is written and what its function is? Is it to provide jurists who are skilled in reasoning with materials on the basis of which they carry out research and criticism? Is it for so-called social function, making itself a carrier to display image of judicial just to the public and lively teaching materials to carry out legal education? Is it to prepare the stage for the wise judge to fully display his talent? All of the above are not the case.
    
    One case is brought to the court, which is mostly chosen by one party. The result of the judgement directly involves the interests of the parties, so in so far as the “judge on duty”, what the judge should firstly consider is how to resolve the dispute in time, justly and effectively and be responsible to the parties. Saying as such does not requires the judge to only consider the parties and be delimited to the case itself when making a judgement, but it signifies that, parties are the first to be considered, while legal education and other social functions come second.
    
    A society is formed by the people. Fairness and justice in jurisdiction are realized through one case and one case being settled properly. If a judgment is properly or not, the parties in the case have more rights to speak.
    
    (2) Causes of the judgement documents lacking reasoning
    
    It is not the author’s intention to deny the problems existing in the judicial judging documents of our courts. Though what the parties expect is the result, that is, the content of “the judgement is as following”, definition of the facts, statement of reasons and application of law following “the court considers”, are indispensable, too. The main problems existing in judicial judging documents in our country just lie here.
    
    The view of our legal experts is that, the legal quality of our judges is generally low, and they lack the ability to theorize their thinking, so they can not write out quality judicial judgements.? In order to solve this problem, jurists have made various efforts. The Supreme People’s Court issued certain samples of judicial judgements worth referring to.? Some courts published certain “Excellent Judicial Judgements of Intellectual Property Cases” selected and edited.… 4These efforts have produced certain effects. In particular, in the field of trial of intellectual property cases, just as the book “judicial judgements” the readers will see, facing disputes such as network, copyright, linkage and domain name, under the circumstance that there are no clear regulations in the law, the judges have made convincing and just judgements by meticulous proof and reasoning.
    
    However, problems still exist. Some may point out that, in order to resolve the “diseases” existing in China’s judicial judgements, it is important to create a system and a system circumstance, where most judges are motivated to write judicial judgements with full reasoning, and thus produce a considerable number of (not occasional or minor) excellent judgements.?
    
    What is such a system? The doctrine of stare decisis in common law provides the requirement of this system and the intensity of encouragement to produce well thought out judgements.? The extent of heterogeneity of the societies is also a significant restricting factor of this system.? In our country, the status of the courts and judges in the society is lower than that of the courts and judges of European countries, and they frequently encounter various forms of interference and disturbance. Therefore, in our country, “independence of judicial trial is an important if not the only premise to improve quality of judgements”.?
    
    The above-mentioned analysis of scholars is profound in some aspect, but what is the “prescription” we write out in the world?
    (3) The course is more important than the result
    
    I agree to this point: writing of the judicial judgement is an important factor in the judicial system, but it is not the only factor, or the most important factor.…
    
    Scholars are accustomed to knowing the process of judicial activity by reading its judgements. However, on some occasions, judgements also become the basis on which scholars make judgements on circumstance of the application of the law, protective level of the rights of parties, and even the professional level and moral standards of the judges undertaking the trials. The importance of judging documents has been greatly enhanced. In fact, judging documents are by far not so heavy, though to the parties, a piece of judgement may mean everything.
    
    Under the existing judicial system and the system circumstance in China where there is considerable interference to the system, the value of judging documents for academic research has been greatly reduced, and its social function is resolutely not as powerful as it is imagined. The reason is still that, the level of legal knowledge of the judges who write judging documents is not high at first, even if some judges with rich ideas and high quality want to write judging documents beautifully, such idea or talent is frequently drowned by various other “interfering factors”. This is in respect of judgement of common civil cases. In judging documents of intellectual property cases, scholars can often read considerably brilliant passages of exposition and argumentation. This is probably related to that most intellectual property cases involve new things and high technology, and the judges appointed to deal with these cases have high qualifications.
    
    The most effective way to resolve the problem of “interference” is to expose the “interference”. The author has talked with a chief of civil tribunal of a court, who said, pointing to the about one-chi-high letters on the desk, that his main everyday work is not to deal with cases, but to handle these letters and instructing notes with “care” of the cases from all aspects. But it is difficult to fully realize the extent of this point “making public all the “interfering” notes.
    
    Therefore, we should not only concentrate on the judging documents. The problems within judging documents are not the writers’ faults in most circumstances. If we pay more attention to the whole course of judgement, we may perhaps reach the same conclusion.
    
    3. Proposal: to strengthen the collegial system
    
    Having described the whole course of civil trial involving intellectual property trial in China, and having pointed out the “interfering factors” behind the judgement, what constructive opinion can be raised? My proposal would be to strengthen the collegial system.
    
    One section of “Certain Regulations” specially regulates strengthening duty of the collegial panel and the single judge. Obviously, the state supreme judging organ has also realized the problem of strengthening construction of the collegial system. “Members of the collegial panel must jointly take part in trial of the case and jointly be responsible to facts, evidence, nature, liability, application of law and result of the case”. Then, how to “jointly try” and “jointly be responsible”? How can we avoid the collegial trial becoming a mere formality and avoid the undertaker himself deciding everything? Can we refer to the “collegial” form of judicial trial in common law countries, that is, each of the judges who participate in the trial of the case expresses opinion on the case independently, and reflects this opinion in the judgement?
    
    “Jointly try” and “jointly be responsible” mean that each member of the collegial panel should express their opinion on the case. This opinion should not only echo the undertaker. While in order to avoid duplication or echoing, such opinion must be written and express independent ideas.
    
    At present, it is still difficult to expect that the court render “interfering factors” public, but we may and should require the court to provide written opinions of members of the collegial panel when necessary, if such opinions are difficult to be fully reflected in the judging documents. ①
    
    The benefit of doing so is obvious: at least it can urge the judges to carefully try the case, to be responsible to the parties and also act responsibly themselves. Perhaps “Interfering factors” will still play a role for a rather long period of time in the future. However, the strengthening collegial system can at least enable relevant people② to know the real judging opinions of members of the panel, and enable the judges to have a chance to independently express their own opinions when performing the right of judicial judgement.
    
    Will the “interfering factors” be restricted and even lose their function gradually once the judges’ judicial opinions are expressed independently and responsibly? The author hopes this will be the case.
    
    
    
    
    
    ① One suggested that a judicial judgement should reflect all the procedure in a case. Except the state secret, all the activities in the trial should be open to the public. See Liu Xinbing: A Note on the Reform of Writing of the Judicial Judgement, Legal Daily, page 3, December 3, 2000.
    ② For example, at present, the judicial opinions or reports could be inspected by the judicial committee at the same court,or be sent to the people’s procuratorate in higher leval; when the conditions are ripe, they can be open to the public.
    

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