Sixth chapter

The legal system of economic protection

Part One

Industrial Property Law

Overview of Industrial Property Law

• In a society which can be described as being saturated with a large amount of information, technological reforms can progress very quickly. Today, this progress involves an international society, and in recent years, this progress has been based on what is known as intellectual rights such as patent rights, trademark rights, confidential business information, copyright, and other rights related to intellectual property (referred to as intellectual property rights). Intellectual property issues cause a number of problems which have attracted much interest in the present society.

• Intellectual Creations

• Commercial Symbols

• Intellectual Property Rights Registered by the Patent Office

• Inventions

• Utility Models

• Designs

• Trademarks

Patent law

• The procedure for granting patents, the requirements placed on the patentee, and the extent of the exclusive rights vary widely between countries according to national laws and international agreements. Typically, however, a patent application must include one or more claims defining the invention which must be new, non-obvious, and useful or industrially applicable.

• The term patent usually refers to an exclusive right granted to anyone who invents any new, useful, and non-obvious process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof, and claims that right in a formal patent application. The additional qualification utility patent is used in the United States to distinguish it from other types of patents (e.g. design patents) but should not be confused with utility models granted by other countries. Examples of particular species of patents for inventions include biological patents, business method patents, chemical patents and software patents.

Trademark law

• This Law is enacted for the purposes of improving the administration of trademarks, protecting the exclusive right to use trademarks, and of encouraging producers and operators to guarantee the quality of their goods and services and maintaining the reputation of their trademarks, with a view to protecting the interests of consumers, producers and operators and to promoting the development of the socialist market economy.

• The Trademark Office of the administrative authority for industry and commerce under the State Council shall be responsible for the registration and administration of trademarks throughout the country. The Trademark Review and Adjudication Board, established under the administrative authority for industry and commerce under the State Council, shall be responsible for handling matters of trademark disputes.

Part two

Consumer Protection Law

Consumer Protection Law

• Consumer protection law designed to ensure fair trade competition and the free flow of truthful information in the marketplace. The laws are designed to prevent businesses that engage in fraud or specified unfair practices from gaining an advantage over competitors and may provide additional protection for the weak and those unable to take care of themselves.

• Consumer Protection laws are a form of government regulation which aim to protect the rights of consumers. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue, such as food. Consumer protection is linked to the idea of "consumer rights" (that consumers have various rights as consumers), and to the formation of consumer organizations which help consumers make better choices in the marketplace.

Consumer rights and obligations of the operators

• Whenever you buy anything, you have certain rights and responsibilities. Under the law, your rights vary depending on what it is you are buying - goods or services.

Protection of the legal rights

• Consumer is defined as someone who acquires goods or services for direct use or ownership rather than for resale or use in production and manufacturing.

• Consumer interests can also be protected by promoting competition in the markets which directly and indirectly serve consumers, consistent with economic efficiency, but this topic is treated in Competition law.

• Consumer protection can also be asserted via non-government organizations and individuals as consumer activism.

Consumer Dispute Resolution

• Choosing the Right Program • Many dispute resolution programs are

completely voluntary. Whether to use them is your decision. In some states, however, a court may order you to try arbitration or mediation. Some companies require consumers to arbitrate their disputes and waive their right to go to court. Check your contract or product packaging for details.

• Many programs offer lists of neutral third parties from which to choose. Be aware that your ADR provider or your state may have ethics rules for third parties to assure impartiality. For example, the third party cannot get personally involved in the dispute or benefit from the resolution. Ask the the program administrator for a copy of the rules.

Liability

In law, liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability.

Part three

Product Quality Law

Product Quality Law

• The law has been formulated with a view to protecting the legitimate rights and interests of endusers and consumers and safeguarding the social and economic order by strengthening the supervision and control of the quality of products and clarifying the responsibilities of product quality.

• The law applies to all production and marketing activities within the territory of the People’s Republic of China.Products mentioned in the law are referred to products processed and manufactured for the purpose of marketing.The law does not apply to construction projects.

• Producers and sellers are responsible for the product quality according to the provisions of the law.

It is forbidden to forge or infringe upon quality marks such as certification marks and marks for fine quality products; it is

forbidden to forge the place of origin, forge or infringe upon the factory names, factory

addresses; it is forbidden to produce or market adulterated products or to use fake

goods as genuine or sub-standard products as standard.

supervision and management of Product quality

• Quality of products shall pass standard examinations and no sub-standard products shall be used as standard ones.Industrial products which may be hazardous to the health of the people and the safety of lives and property shall conform to the State and trade standards for ensuring the health of the human body and safety of lives and property. In absence of such State or trade standards, the products shall conform to the minimum requirements for ensuring the health of the human body and the safety of lives and property.

• The State shall institute the system for certifying quality control system of enterprises according to the quality control standards commonly accepted internationally. Enterprises may apply voluntarily for certification of their quality control systems with the product quality supervision and control departments under the State Council or quality certification organizations recognized by the departments authorized by the quality supervision and control departments under the State Council. The qualified enterprises shall be issued with the certificates for the quality control systems.

• Product quality testing organizations shall have the corresponding testing facilities and capabilities and shall conduct product quality testing only after the examination and approval of the quality supervision and control departments under the people’s governments at and above the provincial level or of the organizations they have authorized. If there are separate provisions by other laws or administrative decrees, the relevant laws or administrative decrees shall apply.

• Endusers and consumers have the right to inquire about the quality problems of products with producers or sellers of the products. They also have the right to complain about product quality with the product quality supervision and control departments or administrations for industry and commerce or other relevant departments and the relevant departments shall be responsible for handling the matters.

• Social organizations for protecting the rights and interests of consumers may propose to relevant departments to handle matters concerning the complaints by consumers about product quality and give aid to consumers to sue producers whose products have caused damages.

Responsibilities and obligations of producers for the quality of their products

• Producers shall be responsible for the quality of products they produce.

• Quality of products shall meet the following requirements:

• Products shall be free from any irrational dangers threatening the safety of people and property. If there are State standards or trade standards for ensuring the health of the human body and safety of lives and property, the products shall conform to such standards.

• Products shall have the property they are due to have, except cases in which there are explanations about the defects of the property of the products.

Products shall tally with the standards prescribed or specified on the packages and with the quality specified in the instructions for use or shown in the providing samples.

Liability law • Producers are forbidden to produce products

eliminated according to State laws or decrees. • Producers are not allowed to fake the place of

origin or fake or use the names and addresses of other producers.

• Producers are not allowed to fake or use the quality marks such as certification marks and fine quality product marks.

• Producers shall not adulterate their products or pose fake products as genuine or shoddy products as good or non-standard products as standard.

• Sellers shall implement the system of examination and acceptance of goods procured, verifying the product quality certificates and other marks.

• Sellers are not allowed to sell products which have lost effect or have deteriorated.

• Sellers are not allowed to fake the place of origin or fake or use the names and addresses of other producers.

• Sellers are not allowed to fake or use quality marks such as certification marks and fine quality marks.

Part four

Environmental Protection Law

Environmental Protection Law• This Law is formulated for the purpose of

protecting and improving people's environment and the ecological environment, preventing and controlling pollution and other public hazards, safeguarding human health and facilitating the development of socialist modernization.

• " Environment " as used in this Law refers to the total body of all natural elements and artificially transformed natural elements affecting human existence and development, which includes the atmosphere, water, seas, land, minerals, forests

• grasslands, wildlife, natural and human remains, nature reserves, historic sites and scenic spots, and urban and rural areas.

• This Law shall apply to the territory of the People's Republic of China and other sea areas under the jurisdiction of the People's Republic of China.

• The plans for environmental protection formulated by the state must be incorporated into the national economic and social development plans;

• the state shall adopt economic and technological policies and measures favourable for environmental protection so as to coordinate the work of environmental protection with economic construction and social development.

• The state shall encourage the development of education in the science of environmental protection, strengthen the study and development of the science and technology of environmental protection, raise the scientific and technological level of environmental protection and popularize scientific knowledge of environmental protection.

• All units and individuals shall have the obligation to protect the environment and shall have the right to report on or file charges against units or individuals that cause pollution or damage to the environment.

• The competent department of environmental protection administration under the State Council shall conduct unified supervision and management of the environmental protection work throughout the country. The competent departments of environmental protection administration of the local people's governments at or above the county level shall conduct unified supervision and management of the environm-

• ental protection work within areas under their jurisdiction. The state administrative department of marine affairs, the harbour super intendency administration, the fisheries administration and fishing harbour super intendency agencies, the environmental protection department of the armed forces and the administrative departments of public security, transportation, railways and civil aviation at various levels shall, in accordance with the provisions of relevant laws, conduct supervision and management of the prevention and control of environmental pollution.

• The competent administrative departments of land, minerals, forestry, agriculture and water conservancy of the people's governments at or above the county level shall, in accordance with the provisions of relevant laws, conduct supervision and management of the protection of natural resources.

• The people's government shall give awards to units and individuals that have made outstanding achievements in protecting and improving the environment.

Legal liability • Any violator of this Law shall, according to the

circumstances of the case, be warned or fined by the competent department of environmental protection administration or another department invested by law with power to conduct environmental supervision and management for any of the following acts:

• refusing an on-site inspection by the competent department of environmental protection administration or another department invested by law with power to conduct environmental

• supervision and management, or resorting to trickery and fraud while undergoing inspection;

• refusing to report or submitting a false report on items for which declaration is required by the competent department of environmental protection administration under the State Council;

• failing to pay, as provided for by the state, the fee for the excessive discharge of pollutants;

• importing technology or a facility that fails to meet the requirements specified in the state provisions concerning environmental protection;

• transferring a production facility that causes severe pollution for use by a unit that is unable to prevent and control pollution.

• When a construction project is commissioned or put to use in circumstances where facilities for the prevention and control of pollution either have not been completed or fail to meet the requirements specified in state provisions, the competent department of environmental protection administration responsible for the approval of the environmental impact statement on the construction project shall order the suspension of its operations or use and may concurrently impose a fine.

• A unit which dismantles or leaves idle the installations for the prevention and control of pollution without prior approval by the competent department of environmental protection administration, thereby discharging pollutants in excess of the prescribed discharge standards, shall be ordered by the competent department of environmental protection administration to set up the installations or put them to use again, and shall concurrently be fined.

• An enterprise or institution which violates this Law, thereby causing an environmental pollution

• accident, shall be fined by the competent department of environmental protection administration or another department invested by law with power to conduct environmental supervision and management in accordance with the consequent damage; in a serious case, the persons responsible shall be subject to administrative sanction by the unit to which they belong or by the competent department of the government.

• An enterprise or institution that has failed to eliminate or control pollution by the deadline as required shall, as provided for by the state,

• pay a fee for excessive discharge; in addition, a fine may be imposed on it on the basis of the damage incurred, or the enterprise or institution may be ordered to suspend its operations or close down. The fine as specified in the preceding paragraph shall be decided by the competent department of environmental protection administration. An order for the suspension of operations or shut-down of an enterprise or institution shall be issued by the people's government that set the deadline for the elimination or control of pollution. An order for the suspension of operations or shut-down of an enterprise or institution directly under the jurisdiction of the Central Government shall be submitted to and approved by the State Council.

• The limitation period for prosecution with respect to compensation for environmental pollution losses shall be three years, counted from the time when the party becomes aware of or should become aware of the pollution losses.

• If a violation of this Law causes a serious environmental pollution accident, leading to the grave consequences of heavy losses of public or private property or human injuries or deaths of persons, the persons directly responsible for such an accident shall be investigated for criminal responsibility according to law.

• Whoever, in violation of this Law, causes damage to natural resources like land, forests, grasslands, water, minerals, fish, wild animals and wild plants shall bear legal liability in accordance with the provisions of relevant laws.

• Any person conducting supervision and management of environmental protection who abuses his power, neglects his duty or engages in malpractices for personal gains shall be given administrative sanction by the unit to which he belongs or the competent higher authorities; if his act constitutes a crime, he shall be investigated for criminal responsibility according to law.

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