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PRC Law Express (KooFa 3rd 2017)

 

Law Express

2017 3rd Periodical

 

 

u  The General Provisions of Civil Law of the People's Republic of China (hereinafter referred to as the General Provisions of Civil Law)

 

The General Provisions of Civil Law is going to take effect on 1st October 2017.

 

The General Provisions of Civil Law stipulates basic civil legal systems such as the basic principles of civil law, civil subjects, civil rights, civil legal acts, civil liability and time limit for filing a lawsuit, which is conducive to the legalisation of citizen rights protection, the improvement of property rights protection system, and the strengthening of civil rights protection. It further clarifies that personal rights and property rights and other legitimate rights and interests are protected by law. For example, in order to strengthen the protection of intellectual property rights, the General Provisions of Civil Law for the first time clearly defines the objects of intellectual property protection, which include data, network virtual property, thus providing basis for the establishment of relevant legal systems and trail of cases of new kinds.

 

The General Provisions of Civil Law has constructed a basic framework for China’s civil legal system, laid a foundation for the compilation of civil code, and provided a ground for the civil rights stipulated in detail by civil code, civil and commercial lex specialis.

 

u  Management Measures on the Approval and Filing of Enterprise Investment Project (hereinafter referred to as the "Measures")

 

The Measures will be put into force on 8th April 2017.

 

Measures has seven chapters in total, namely: general principles, application conditions for project approval, basic procedures for project approval, examine and effectiveness of project approval, project filing, supervision and management and legal responsibility. Measures applies to fixed assets investment projects invested and constructed by enterprises in China, including projects with funds raised by enterprises and projects using funds raised by enterprises together with government investment subsidies or loan with subsidized interest. Measures provides that projects concerning national security, and involving the country's major productive forces, strategic resource exploit and major public interests etc. should be subject to approval management, while other projects are just required to conduct filing.

 

Measures acknowledges the enterprise investment autonomy and standardises government's approval and filing of investment projects. It is of great significance in the transformation of government investment management functions and in the reconfirmation of corporate’s dominant role in investment.

 

 

u  Decision of the State Intellectual Property Office of the People 's Republic of China on Amending the Guidelines for the Examine of Patents (hereinafter referred to as the "Decision")

 

Decision will be implemented on April 1, 2017.

 

Decision mainly has the following five points: first, clarify that business model meeting certain conditions can apply for a patent, which opens a door for the business model related invention to patent protection; second,  more open attitude towards computer program patent protection is adopted, and examining practices about the right requirement for virtual devices is expected to be unified; third, based on the premise that first application principle is of dominance in the relevant examine practices, the attitude towards experimental data submitted afterwards is more flexible; fourth, modify the invalid procedures so that the patentee would be in a more favourable position during the invalid declaration process; fifth, amend the disclosure of patent documents to facilitate the public in making better use of patent documents, which is also conducive to the supervision of patent examine by the public.

 

The revision of the Patent Examine Guidelines reflects the efforts of the State Intellectual Property Office to meet the needs of the time and actively serve the innovative development of economy, as well as the better operation of China's patent system.

 

 

u  The Opinions of State Council on Strengthening the Fight against Infringement of Intellectual Property Rights and the Manufacture and Sale of Counterfeit and Shoddy Goods under the New Situation (hereinafter referred to as “Opinions”)

 

Opinions was released on March 9, 2017.

 

The goal of the Opinions is to further strengthen the anti-infringement and counterfeiting action, to ensure the deep implementation of the national intellectual property strategy, to maintain fair competition in the market, to improve the legalization, internationalization and facilitation of the business environment. For the reasons above, the Opinions proposes: first, to strengthen inter-sectoral law enforcement cooperation, promote interregional association of law enforcement, combat infringement of counterfeit goods production, circulation, sales; second, focus on outstanding issues in intellectual property and other areas, regularly organize special rectifications, crack down on infringement and counterfeiting criminal acts; third, give full play to the role of judicial protection, as well as build an authoritative and efficient judicial protection system of intellectual property rights; fourth, grasp the international intellectual property system evolving trend, combining with China's national conditions to further improve the intellectual property rights protection system to enhance the internationalization of intellectual property protection.

 

Opinions presents the determination of the State Council to combat infringement and counterfeiting, strengthen the protection of intellectual property rights, and promote national innovation.

 

 

u  Labor Law Tips---- How to Calculate the Overtime Pay under Piece Rate System

 

The Employer that implements the piece-rate wage system, and arranges employees to work overtime after the completion of the piece-rate quota, shall pay for the overtime pursuant to law. In accordance with the Interim Provisions on Wage Payments, employees who are subject to piece-rate wages and are arranged for extra work by the Employer after the completion of their piece-rate task, shall be paid not less than 150% of the piece price of statutory working hours for general overtime. The overtime pay would be 200% and 300% of the piece price of statutory working hours when work extra on weekends and statutory holidays respectively.

 

It should be noted that, for employees with the implementation of piece-rate system, Employer should determine their working quota and piece rate standards in accordance with Article 36 of the Labor Law.