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An Interpretation of China's IPR Judicial Cases Guidance System

2020-03-26 root in (Translated by Meng Xiaoke) Xu Bo Judge at Beijing Intellectual Property Court, Intellectual Property Law Doctoral Candidate of
Since the founding of the People's Republic of China, the Supreme People's Court of China (SPC) has always focused on the guiding role of judicial case in the trial activities.

Since the founding of the People's Republic of China, the Supreme People's Court of China (SPC) has always focused on the guiding role of judicial case in the trial activities. In the long-term judicial practice, the judgements made by the Supreme People's Court of the trial court, objectively play a role in guiding the national trial, and unifying the trail norms. In addition, the Higher People's Court, combined with local conditions, often issues a number of typical cases to guide the trial in jurisdictions.


In 2005, the Supreme People's Court, in the Second Five-year Reform Program (2004-2008) of the People's Court, for the first time put forward "establish and improve the cases guidance system". In December 2008, on the deepening of the judicial system and the reform of the working mechanism of a number of issues, the Central Committee viewed the case guidance system as an important part of national judicial reform. On November 26, 2010, the Supreme People's Court issued the Provisions Concerning Work on Cases Guidance, which marked the formal establishment of the guidance system with Chinese characteristics. In 2014, the Fourth Plenary Session of the 18th CPC Central Committee put forward "to strengthen and standardize judicial interpretation and case guidance, and unify legal application standards", which makes clear direction for further improving the Chinese cases guidance system.


I. To clarify the relationships among three aspects

At present, the Supreme People's Court has issued 15 batches of 77 guidance cases, of which 10 are involved in intellectual property. Although the overall proportion is not low, the existing intellectual property guiding cases in terms of quantity and coverage, are far from being able to meet the actual needs of the judiciary (2013-2015, the number of intellectual property cases in China was rising year by year). In addition, although the Chinese cases guidance system has begun to take shape, further studies need to be done in the system improvement and the specific implementation of a lot of theoretical and practical issues. On April 24, 2015, the Supreme People's Court in the Beijing Intellectual Property Court set up IPR Cases Guidance Research (Beijing) Base (referred to as the Case Base) and firstly tested in the intellectual property trial field, carried out comprehensive theoretical , standardized, information and open research, and provided practical material and test samples to improve the Chinese case guidance system. In order to ensure the correct direction of exploring the guidance system of intellectual property cases, the relationship among three aspects needs to be focused on.


1 . The relationship with statutory law

China is a country with statutory law, the National People's Congress and its Standing Commit tee exercising legislative power, the people's court to exercise judicial power through the applicable law. The IPR Cases Guidance System is an institutional innovation carried out within the framework of existing intellectual property legislation and other areas of law, with the aim to apply the statute in a more uniform, accurate and high level, and its function to supplement the formulation, rather than creating new legal sources. Therefore, the system will not change the Chinese political system and shake the foundation of China's legal system.


2 . The relationship with guiding cases

In China, the guiding cases refers to specific cases decided and issued by the Supreme People's Court Judicial Committee under discussion, which has general guidance for the trial of the national courts. In the context of the case of IPR Cases Guidance System (there is no totally the same cases, so the concept "similarity" is used here), besides the guiding cases recognized by the SPC, the judiciary judgements have the feature of territoriality, which only have "legal effect" in specific territory and shall not conflict with the guiding cases. But cases in this part have more effectiveness, quantity and broad scope, which can respond to the actual needs of justice in a timely manner and promote referee standards within a certain geographical scope as soon as possible to achieve unity. At the same time, they can also supply continuing true data for the Supreme People's Court to issue guiding cases, make judicial interpretation and even do relevant legislation.


3. The relationship with judicial reform

To ensure that the IPR Cases Guidance System is truly integrated into the judicial practice and plays the effect of the system, it is necessary to reform the operation mechanism of the trial power according to the requirements of the judicial reform and establish a judicial responsibility system in accordance with the judicial law. The goal of judicial reform is to build a "open, dynamic, transparent and convenient" judicial mechanism, and a fair, efficient and authoritative judicial system to promote the formation of a healthy judicial ecology. On this basis, the IPR Cases Guidance System might be implemented.


II. Main content of the IPR cases guidance system

1. The basic connotation of the IPR Cases Guidance System 

The basic connotation of the IPR Cases Guidance System is that when the law is clearly defined, the application of law shall be taken strictly; when the law is not clear, accurate understanding and interpretation of the law shall be taken; when the law provides loopholes or new conditions and new issues lack of provisions, the basic principles of law and legislative intent shall be taken, with the supplement of judicial practice.


The core and characteristics of the IPR Case Guidance System is "following the precedent", that is, as for the case of a similar case, the principle of the case is to follow the precedent, which has established the rules of the referee. Since the rules of the referee as a precedent are included in the specific case, the case of the entry into force of the rules is usually referred to as a precedent.


In the context of the IPR Cases Guidance System, the extension of precedents is wider than that of the Supreme People's Court, and the guiding case is only a type of precedent. In addition, the precedent also includes cases that have been identified and published through specialized procedures, as well as cases that are actually followed by the adjudicator in the proceedings. Of course, the precedent produced in the later two conditions are not completely isolated with the guiding cases. After they are determined and issued by the Supreme People's Court, they become guiding cases with universal guiding significance for the trial of the national courts.


2. The characteristics of the IPR Cases Guidance System

Compared with the existing case guidance system, the IPR Cases Guidance System has three main characteristics.


One is to give precedent "binding forces in fact" to ensure that judges form a precedent of thinking and habits. Of course, this binding force is not a legal coercive constraint, not make a precedent as a legal basis for the referee to apply, but requires the judge cite and elaborate the part as a reason to make judgements, which is based on the judicial behavior of the system constraints and requirements. From another point of view, "binding forces in fact" can be understood as a "substantial convincing", which means that if the judge is to overthrow the precedent or does not follow the precedent, sufficient causes shall be given accordingly. Otherwise, the precedent shall be followed to make judgements.


Second, establish the effectiveness precedents system of "up and down, forward and backward, left and right" to prevent confusion or conflict between precedents. "Up and down" means that judging case should follow the precedent of the higher court; "forward and backward" refers to judging case should follow the precedent of the court; "left and right" refers to judging case can refer to the other court precedent which has not binding force to the court. Once the court has referred to precedents in other jurisdictions, it means that it will be possible to establish the same rules in the precedent within the jurisdiction. At the same time, the level of the precedents is distinguished. For example, guiding cases issued by the SPC belong to the highest level of precedent, which are instructive to the trial of the national courts; the precedents of the higher people's courts are only effective within their jurisdiction.


The third is to enrich the precedent supply channels and mechanisms to ensure the quantity and quality of the precedents supply. On the one hand, with the help of experts and scholars and the community forces, set up an Expert Advisory Committee of Case Base with a wide range of sources, from the national people's courts at all levels of IPR enforcement decisi

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