Editorial - IP in China: Moving closer to the common law system for the sake of uniformity

In our latest Editorial, Danny Friedmann reflects upon the latest trends in Chinese IP law, as well as the advantages of having harmonized IP regimes.

IP in China: Moving closer to the common law system for the sake of uniformity

To improve transparency, a uniform application of law, and thus legal predictability towards a commercial rule of law, on 12 April 2017 the Supreme People’s Court (SPC) promulgated an opinion that courts in the People’s Republic of China (China) have to take similar cases into account before making a decision.1 Article 6 of the SPC’s Opinion states:
“All levels of people’s courts shall give full consideration to the professional judges’ conferences and adjudication committee’s roles in summarizing trial experience unifying judgment standards; and on the foundation of improving working mechanisms such as consulting similar cases and judgment guidance; a mechanism is to be established requiring the search of similar cases and relevant cases, to ensure a uniform judgment standard for similar cases, and the uniform application of law.”2
The SPC’s opinion means that, while a precedential system will not be de jure binding, it will often be persuasive. China’s untenured judges already frequently make decisions according to the expectations of higher courts because they do not want to obstruct their careers. This opinion, however, also forces courts to take similar cases from courts of the horizontal level into account. The case law system will supplement the judicial interpretations of the SPC that must also guide and unify law.
China has realized that IP law is complex and requires judges to be well-versed in this particular area. Therefore it established specialized IP courts in Beijing, Shanghai and Guangzhou in 2014, and specialized IP tribunals in Nanjing, Suzhou, Chengdu and Wuhan in 2017. The latter, cross-regional tribunals, have jurisdiction for civil, administrative and criminal (“three-in-one”) IP cases, and are attached to the intermediary people’s courts of those respective cities. To further a uniform adjudication of IP law, the SPC has recommended to the National People’s Congress the establishment of an IP Appellate Court.
Besides setting up a specific IP adjudication infrastructure, China has prepared thoroughly for the implementation of a mechanism to apply IP law in a more unified manner. For a long time, case law in China was highly opaque, since it remained either unpublished or unmotivated. In 2010, the SPC established a system in which certain court cases, so-called Guiding Cases, were selected and reissued.3 The idea is that courts will cite the Guiding Cases.4 However, so far they have hardly been cited.5
In 2017, in its 16th batch, the SPC selected ten new IP cases as Guiding Cases.6 Around World IP Day 2017, there was an explosion of reissued case law by the Beijing IP Court, Shanghai IP Court, Beijing High People’s Court and many lower courts throughout China’s provinces. All came up with their own typical, model, innovative or Top 10 IP cases.7 To make sense of this profusion of case law, the Beijing IP Court, which has become the centre for IP case law in China,8 provided a hierarchy of persuasiveness in precedence: 1. SPC Guiding Cases; 2. SPC annual cases; 3. other SPC cases; 4. High People’s Court model cases; 5. High People’s Court reference cases; 6. Other prior cases from High People’s Courts; 7. Intermediate People’s Court precedent; 8. Basic People’s Court precedent; 9. Foreign case precedent. Chinese courts can work their way down from the most persuasive to lower levels of persuasive authority.9
After the explosion of case law, these Guiding, typical, model, innovative or Top 10 cases are helping to prune China’s IP case law and distinguish relevant from non-relevant case law.
China’s civil law system, enriched by this hybrid precedential process, especially in combination with data analytics, could potentially improve both the courts’ quality of IP decisions and economy of justice.


SPC’s Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management, 12 April 2017, China Court News, 12 April 2017, available in Chinese: http://www.chinacourt.org/law/detail/2017/04/id/149382.shtml.
SPC promulgated the Provisions of the Supreme People’s Court on Case Guidance Work, 26 November 2010. The China Guiding Cases Project, Stanford Law School, led by Mei Gechlik, is making such Guiding Cases accessible into Chinese and English and provides a platform for scholarly interpretations, see here: https://cgc.law.stanford.edu/guiding-cases/.
Detailed Implementing Rules on the “Provisions of the SPC Concerning Work on Case Guidance”, passed by the Adjudication Committee of the SPC on 27 April 2015, issued on and effective as of 13 May 2015, Stanford law School China Guiding Cases Project, English Guiding Cases Rules, 12 June 2015 Edition, available at: http://cgc.law.stanford.edu/guiding-cases-rules/20150513-english.
In a period of five years, Guiding Cases were only cited 239 times out of upwards of 10 million cases per year, according to research by Peking University. Jeremy Daum, The Curious Case of China’s Guiding Cases System, China Law Translate, 21 February 2017, available at: http://www.chinalawtranslate.com/the-curious-case-of-chinas-guiding-cases-system/?lang=en#_edn2.
On 9 March 2017, the SPC issued the 16th batch of new Guiding cases which are ten cases pertaining to IP: Numbers 79-86 are civil cases and number 87 is a criminal case. A summary of these cases can be found here in Chinese: ‘SPC, notification of 16th batch of Guiding Cases involving intellectual property rights, China Court News, 9 March 2017, available in Chinese at: http://www.chinacourt.org/article/detail/2017/03/id/2575036.shtml.
For example: SPC issued 10 Typical IP Cases, 24 April 2017; Beijing IP Court issued 18 (sic) Typical Cases on bad-faith registrations of trademarks, April 2017; Beijing High People’s Court issued Top 10 Typical and Top 10 Innovative IP Cases Court, 20 April 2017; Shanghai Pudong New Area District Court issued Top 10 IP Cases, 13 April 2017.
It was announced at a conference on 22 September 2015, that the Beijing IP Court will be the centre for IP case law.
According to Daum, the Beijing IP Court issued the Guiding Work Implementation Methods (Draft) which was not yet publicly available. Article 7 (from most to least persuasive): Jeremy Daum, ‘Unprecedented: Beijing IP Court’s use of ‘guiding cases’, China Law Translate, 31 August 2017, available at: http://www.chinalawtranslate.com/beijing-ip-court-making-new-precedent-on-guiding-cases/.

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