The Nature of the Post-WTO Chinese Legal System

In order to fully comprehend the current IP system in China, it is necessary to first grasp an appreciation for the complex interplay between the state and the law in China and how this relationship has developed. Firstly, China could be said to have only benefited from an independent legal system since 1912; in Imperial China, all power was vested in the emperor and the legal codes that did exist were aimed at protecting the state’s interests rather than individual rights. Moreover, many legal matters were dealt with informally by local groups without recourse to formal legal structures (Cohen 1966, p. 470).

Furthermore, since the establishment of the PRC in 1949, the formal legal framework has also periodically been sidelined in favour of extrajudicial mechanisms, particularly during the Cultural Revolution from 1966-76 (Wang 1995, p. 132). As the contemporary legal framework of courts and personnel has only been established for less than four decades, since the start of the reform period in the late 1970s, the juvenile nature of the legal system still has its legacy in the current IP system, particularly in the lack of experience of key personnel, an issue compounded by the fact that specialised IP courts were only more recently established. In addition, although the legal system has been subject to sweeping reforms in the past decades, these changes cannot be considered in isolation.

Regardless of how much legislation is promulgated and how many judges are trained and installed in the courts, legality will not grow unless the Party-state fosters and maintains a commitment to it and alters the allocation of power between the courts and the rest of the Party-state. (Lubman 1999, p. 299)

In other words, consideration of the legal system necessarily incorporates discussion of the political system in China as well. The legal system in China is also subject to lingering suspicions that, despite committing to establishing a rule-of-law state in a constitutional amendment of 1999, it is still subject to the policy whims of the Party (Liu 1991, pp. 7-8). Indeed, China’s legal system is frequently judged to be following an instrumentalist model of the law, whereby law is merely the vehicle by which policy goals are achieved, whether they be social control, class emancipation or economic development. This instrumentalist model could be seen as originating in the traditional Chinese legal system, but also as arising from adoption of a Marxist legal model (Yu 2001, p. 72).

The instrumentalist nature of the legal system in China has several implications for the current IP system. It is certainly true that legislation is often drafted to be “intentionally ambiguous” (Potter 2001, p. 11) in order to allow for shifts in policy emphasis and with detailed regulations issued later to fill the gaps. This could also be a consequence of the traditional preference in China for bureaucratic discretion over legislative certainty. In addition, there is a traditional preference in China for informal dispute resolution mechanisms, such as mediation which leads to a continued dominance of public enforcement mechanisms in the legal system generally.⁵ The obvious corollary of this is a corresponding weakness in the judicial system. Although the principle of judicial independence is officially accepted, the interpretation of this principle refers to the elimination of direct interference in individual cases rather than a wider separation of powers recognised as central to judicial independence in other jurisdictions (Keith 1994, p. 18). Finally, the decentralisation that has taken place in the reform era, as China has moved away from a centrally planned command economy, has conversely led to problems in the legal system; as provinces are now more powerful, local protectionism cannot be easily confronted as local interests are deeply entrenched.

In terms of the IP system specifically, there are a number of official agencies charged with administering the current IP system in China. The State Administration for Industry and Commerce (SAIC) is responsible for trademark registration and enforcement, which is often carried out administratively through local-level AICs. The General Administration of Customs is the body responsible for enforcement of IP at the border, whilst copyright is dealt with by the National Copyright Administration (under the General Administration of Press and Publication). Finally, despite the wider-ranging name, the State Intellectual Property Office is only responsible for patent registration and enforcement and was formerly known as the Chinese Patent Office. In addition, the Supreme People’s Court is the body responsible for judicial enforcement of intellectual property in China.

Apart from the Supreme People’s Court, all of these organisations are directly responsible to the State Council. The Supreme People’s Court is overseen by the National People’s Congress (NPC) and its permanent Standing Committee. According to Article 67 of the PRC constitution,⁶ it is also the role of the NPC’s standing committee to oversee the work of the State Council. Thus, the main IP agencies are not subordinate to a particular ministry. However, as they are powerful bodies reporting directly to the State Council, they are highly resistant to any attempts to merge them or delegate their powers to other bodies. As a result, the IP system is often accused of lacking coordination between these multiple channels (Mertha 2005, p. 111).

Therefore, the role of the law and of the state in China and the developing relationship between the two has a variety of implications for the current system of IP protection. These consequences will be discussed further in this book as analysis of the current IP system develops. The following section will now examine the development of IP in China.