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Current Issue: VOLUME 11, NUMBER 2
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Preface
By LIU Zihe and TANG Ping Fan
The first half of 2019 is enveloped in the haze of uncertainties. The escalation of trade war signifies the commencement of a new wave of efforts in reconstruction and anti-reconstruction of global competitive landscape. In response to this unprecedented conflict, China has adopted numerous reform initiatives to better equip herself for the ongoing challenges, among which law forms an important portion. Understanding the evolvement of China’s legal environment therefore becomes a compulsory course. Tsinghua China Law Review has always been well-positioned in offering readers an insight of the most heated scholarly debates that are shaping the future of China law. Articles in this issue are carefully selected to present trends representative in a variety of subject areas, including litigation procedure, intellectual property law and administrative law. [read more...]
 
 
Preface | 11 Tsinghua China L. Rev. (2019)
Lay Participation in the Adjudication of Legal Disputes: A Legal-Historical and Comparative Analysis Focusing on the People’s Republic of China and Its Special Administrative Region Hong Kong
By Andra LE ROUX-KEMP
The participation of lay persons in the adjudication of legal disputes is generally regarded as a necessary and effective constituent for a credible and independent judicial system. This is exemplified in the trial by jury in jurisdictions with legal systems following the common law tradition, and the participation of lay assessors sitting together with (a) professional judge(s) in mixed-court tribunals in jurisdictions with legal systems following the civil law tradition. This article offers a comprehensive, legal-historical and comparative analysis of the respective modes of adjudication adopted in the People’s Republic of China and its Special Administrative Region of Hong Kong, for as far as these make provision for the participation of ordinary citizens in the adjudication of criminal legal proceedings. The focus on lay participation in the criminal legal proceedings of these two jurisdictions serves as an example of legal transplants from other “Western” jurisdictions to the “East” through conquest, colonization, and legal reform. The critical analysis and review of these legal transplants as provided for here, not only elucidate the unique laws and legal systems of these two jurisdictions operating under the one country two systems principle, it also raises questions with regard to the true value and suitability of the respective lay participation models with reference to its distinct, contemporary Chinese context. The question remains, from medieval “West” to the present-day “East”, whether the participation of lay persons in the adjudication of legal (criminal) disputes is not overestimated, and whether it is truly a guarantor of (or at least contributing to) a credible and independent judicial system. [read more...]
 
 
Article | 11 Tsinghua China L. Rev. 183 (2019)
Trademark Trolls in China: Reasons and Solutions of the Serious Market Disturbing Problem
By FENG Shujie
In recent years, trademark trolls have become a serious problem that disturbs the Chinese market. Though trademark trolls are concomitant with the trademark registration system, their overspreading in China is due to particular social and legal factors: the proactive trademark protection policies which value trademark certificates over the goodwill of trademarks that have developed over time; damages, in recent years, to trademark infringements which have increased drastically in an unjustified manner; and, trademark infringement dispute settlement procedures before administrative and e-commerce platforms that are inequitably favorable to trademark holders. The Chinese legislature and courts, cognizant of the seriousness of the problem, have started to take measures against trademark trolls. The 2013 Chinese Trademark Law permits prior legitimate users of a trademark to continue its use within the initial scope even if the trademark has been registered later by a third party. Further, the 2018 Chinese E-Commerce Law doubled the amount of damages granted to the victim in cases of bad faith complaints on e-commerce platforms. The Chinese courts have qualified the existence of trademark trolls as an abuse of rights or unfair competition, an understanding which may give rise to liability against trademark troll entities. In addition, a declaratory judgement of non-infringement is available if the victim simply needs to get rid of the uncertainty or risk in the face of threats from trademark trolls. Finally, the victim can also file an opposition or invalidation action in cases of trademark squatting by trademark troll entities.
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Article | 11 Tsinghua China L. Rev. 257 (2019)
The Copyright Protection of Video Games from Reskinning in China—A Comparative Study on UK, US, and China
By LI Zihao
Video games are becoming a popular form of entertainment, as well as an important part of the Internet industry. With the advancement of computing and graphics technologies, video games are now defined by various elements, which are the intellectual achievements of the designers. However, the prosperity of video games also creates a breeding ground for copyright infringements. Reskinning, as one of the popular cloning methods, has gravely harmed the interests of game designers. Being the largest video gaming market in the world, China has to deal with these issues properly to ensure healthy and sustainable development of its video games industry. In order to examine copyright protection of video games from reskinning in China, this article firstly introduced genres of video games, the current legal protection mechanisms and the subject matter of video games to demonstrate the status quo of video game and its regulation. Then the article compared the current copyright protection of video games among the US, the UK and China and analysed each legal approach for the purpose of exploring possible approaches to improve copyright protection of video games from reskinning in China. Finally, the article proposed three suggestions for Chinese copyright law from the subject matters of copyright protection, assessment criteria and industry-based self-regulation parts.
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Article | 11 Tsinghua China L. Rev. 293 (2019)
E-bikes Regulation in Beijing
By YU Lingyun, SHI Lidong, ZHAO Lijun
E-bikes regulation is a comprehensive urban traffic management, which connects all links and involves the participation of all interested parties. In Beijing, the E-bike governance has been changed from “prohibition” to “regulation”, which mainly concentrates on three aspects: product quality, registration for license plates, and management of non-standard vehicles. Product Catalog is an administrative guide demonstrating national standards that connect various regulation means: E-bikes should be qualified under the Catalog; the department of transportation manages the registration of electric bicycles and the application of license plates through the Catalog. Registration and license plates provide the transportation police with a means to effectively control the E-bikes running on the road. The transitional period of non-standard-vehicles is a beneficial attempt to balance the public’s well-being, government’s power, and citizens’ rights and obligations. [read more...]
 
 
Essay | 11 Tsinghua China L. Rev. 341 (2019)
What Do the Panama Papers Teach Us about the Administrative Law of Corporate Governance Reform in Hong Kong?
By Bryane MICHAEL, Say H. GOO
A complex business environment calls for a flexible administrative law for the agencies that oversee corporations. Nowhere illustrates this maxim better than Hong Kong, and its need to reform corporate regulations after the Panama Papers revelations. This article argues that only a flexible and results-oriented administrative law can best cope with the challenges facing the regulation of corporate governance. Such an approach to administrative law develops new principles and tests, rather than gives civil servants detailed instructions. Such an approach to corporate governance can also facilitate the assessment of company governance, corporate disclosure, the self-regulation of professional groups like lawyers and accountants, as well as ensure corporations engage in “legitimate economic purposes.” This article explains why such a flexible approach to administrative rulemaking would more likely reduce some of the government regulation and oversight problems exposed by the Panama Papers than previous approaches toward drafting and implementing administrative law. [read more...]
    
Essay | 11 Tsinghua China L. Rev. 369 (2019)
Supervision Paired with Innovation: The New Vaccine Administration Law
By SONG Jinyang
After the recent vaccine scandal, the central government proposed a separate legislation for vaccine administration to ensure the authority and stability of vaccine supervision. The Vaccine Administration Law has recently been promulgated at the 11th meeting of the Standing Committee of the 13th Session of the National People’s Congress. The administration and supervision of vaccines are largely dependent on general drug administration laws and product standards. This note will introduce some innovative method of the separate legislation, including building a lifecycle quality management system, ensuring vaccine injury compensation and promoting transparency and information sharing. [read more...]
 
 
China Law Update | 11 Tsinghua China L. Rev. 415 (2019)
The First-Ever E-Commerce Law: How Will the Law Impact Individuals and Businesses?
By TAN Yanfei
As the e-commerce industry has become one of the backbones of the development of digital economy in China, it is vitally important to build the e-commerce rule of law in the country. After four rounds of debates, on August 31, 2018, the leading legislators of China passed E-Commerce Law. The law has become effective on January 1, 2019. E-Commerce Law, aimed at improving regulation of the flourishing online market, specifies various regulations concerning operators, contracts, dispute settlement and liabilities involved in e-commerce as well as the market development. On the whole, the law puts relatively heavy obligations and responsibilities on e-commerce businesses, especially on platforms, and provides protection for the relatively disadvantaged e-commerce consumers. This note will introduce some key provisions of this law, including those affecting the interests of Chinese individual Daigous, those providing various protection for Chinese consumers, and those ruling the obligations of the e-commerce platforms. [read more...]
 
 
China Law Update | 11 Tsinghua China L. Rev. 427 (2019)
Unifying Technical IP Adjudication: The Launching of Intellectual Property Tribunal of Supreme People’s Court
By LIN Meng
Since 2008, China has been exploring the specialization of adjudication for IP rights in the past decade. On 1 January, 2019, the Chinese Supreme People’s Court inaugurated its Intellectual Property Tribunal located in Beijing, which becomes the top judicial authority with an exclusive jurisdiction over technical IP cases and antirust cases. The establishment of IP Tribunal of SPC is a major breakthrough in China’s protection of IP rights, for it is conduce to unify the adjudication of IP cases. This new Tribunal also serves to further optimize the legal environment for scientific and technological innovation, and to accelerate the implementation of the Innovation-driven Development Strategy. [read more...]
 
 
China Law Update | 11 Tsinghua China L. Rev. 439 (2019)

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