Legal Notebook

According to “Circular of the State Administration of Foreign Exchange on Printing and Distributing Laws and Regulations for Foreign Exchange Management of Service Trade” (Hui Fa [2013] No. 30, “Circular”) released by State Administration of Foreign Exchange(SAFE), reform of foreign exchange management of service trade will be started on 1st Sep. 2013. The reform highlights 2 aspects: the procedures in dealing with foreign exchange will be more convenient, the taxation policies on foreign exchange will be relatively loosen. Measures for the more convenient procedures are stipulated in Guidance for Foreign Exchange Management of Service Trade, and implementation rules, mainly include:…

Over the years, the Chinese enterprises used to be the licensee under a technology licensing contract (“TLC”), this is why the Chinese laws and regulations have stipulated provisions which are more restrictive to licenser under TLC, especially many prohibitive/restrictive provisions on the restrictive terms in TLC. For the licensers, on the one hand, they want to obtain economic benefits by licensing technology, on the other hand, they want to restrict the usage and improvement of the foresaid technology, control the sale of the products produced with the said technology and etc., so the legality and practicality are the two key…

Mr. Wang (“Wang”) and Company A (“A”) have signed “Confidentiality Agreement”, in which stipulated that Wang shall keep confidential A’s trade secrets, including the experimental data and etc., and the confidential term shall be the term of the employment and 2 years after termination of this employment. 2 years after the termination of this employment, Wang disclosed the experimental data to Company B. By using those data, Company B produced similar products and sold them at a low price, which helped it to occupy the market quickly. A found Wang’s disclosure action, it filed a lawsuit against Wang for the…

A preliminary injunction (“PI”) in IP lawsuits is an injunction entered by a court prior to a final determination of the merits of a legal case, in order to restrain a party from going ahead with a course of conduct or compelling a party to continue with a course of conduct until the case has been decided. [1] When China joined WTO, in order to link up the relevant laws and regulations with TRIPS, it has added the relevant provisions on PI in the revised Patent Law, Trademark Law and Copyright Law, with reference to PI system of Britain, USA…

“1 Hz is OUT, please do not confuse consumers”,” Full DC is OUT, 10 years old technology is old”. Midea and Gree, 2 air-conditioner companies, were involved in an advertisements’ fight in April 2012, Jiangxi Province. After the advertisements were launched, both parties alleged that the opposite side had violated “Anti-Unfair Competition Law”, and claimed for compensation. After hearing, the court affirmed that they were air-conditioner sellers, so they are competitors; consumers might be confused by these advertisements on the different brands of air-conditioners, and finally the consumers might make a false decision. The court required both parties to stop…

In accordance with relevant laws and regulations, retirees mean the person whom terminates the labor contract with the employer when he/she meets the criteria of age, type of work the work ability and the endowment insurance. Nowadays, some High-tech retirees are rehired by the enterprises in the relevant fields. The relationship between retirees and the enterprises should be deemed as the service relation between equal entities (“Ministry of Labor on Several Issues Related to Implementation of Labor Contract”,” Reply Letter of the General Office of the Ministry of Labor on Answering to the Request for Several Issues Related to Implementation…

In 2011, Mr. Zheng brought commercial third-party liability insurance for motor vehicles (“CTLI”) for his car. One day, Mr. Zheng lent the car to his friend Mr. Pan, unfortunately, a traffic accident happened, Mr. Pan was identified with full responsibility. The victim appealed to the court against both Mr. Zheng and Mr. Pan, the court made the decision that Mr. Pan should undertake the compensation of 130,000 Yuan, and Mr. Zheng was not liable. As per the court decision, Mr. Zheng and Mr. Pan claimed compensation from the insurance company. However, the insurance company said that because the insured Mr.…

“Labor Contract Law (Amendment),” will go effective on 1st, July, 2013, and the new requirements on labor dispatch (“LD”) become a compelling topic, the widely focused topics include: the new requirements on 3items of the position in LD, the issues related to the transfer from LD to labor contract, whether LD can be replaced by service outsourcing, and etc.. The Amendment has clearly stipulated the 3 attributes of “temporary, auxiliary, replaceable” of the position in LD, however, the distinction between “main business positions” and “ancillary business positions” varies by enterprise. Meanwhile, the local authorities have set different criteria on the…

Mr. Chen is the salesman at company Shadow (“Shadow”). One day, Mr. Lee whom was the client of Shadow invited Mr. Chen to play cards. A few hours later, Mr. Chen lost 20,000Yuan in gambling, and Mr. Chen promised to pay the money within 1 month. 1 month later, Mr. Lee asked for payment for several times, but Mr. Chen refused to pay. Mr. Lee went to Shadow to negotiate, however, both parties could not make an agreement and ended fighting with each other, Mr. Chen was injured, and his colleague Mr. Wong who tried to mediate was injured too.…

In practice, more and more cases on the infringement of patent, which are taken action by the third party against OEM separately or both OEM and the purchasing company to the court. OEM manufactures products based on the commission processing contract, if the products infringe the third party’s patent right, besides the tort liabilities undertaken by the purchasing company, whether OEM shall undertake such liabilities? Generally speaking, there is no dispute on the tort liabilities undertaken by the purchasing company. Therefore, there is a view that, since the manufacturer is the purchasing company, OEM only engages in producing products in…