Mr. Xu Chunjian, the deputy chief judge of Guangdong Higher People?s Curt, says the iPad trademark battle will produce a deep influence on the market share in China of iPad as well as the development of the product?s commercial model. Therefore, it demands the maximum realization of the parties? interests with the fair and strict application of the law by the court. Meanwhile, the presiding judge of the third civil hearing court of Guangdong People?s Higher Court Mr. Qiu Qingyong also stated that a new hearing may be arranged when new facts appear to be investigated after the examination on the current evidences.
In fact, the mediation system mentioned by the judges is an integral part of the Chinese judicial system, and today we would like to introduce you the system in our essay. To suppress the lawsuit is part of Chinese traditional culture, and the dispute tends to be settled through the mediation under the president of elders or prestigious man in the family, which correspondingly all the lawsuit could be settled through conciliation.
I. Prior-lawsuit conciliation.
By the existing Civil Litigation Law, though there regulate no articles concerning prior lawsuit conciliation, while Mr. Wang Shengjun (note: the link is in Chinese), the Chief Justice of China, introduced the system to the practices after taking office in 2008. There are mainly two prior lawsuit conciliation. One is presided by the people?s conciliation office or industry association set in the court, and in the IPR cases, the China Internet Association Conciliation Center (note: the link is in Chinese) also participates in the lawsuit conciliation; and the other kind is presided by the judges or people?s assessors.
II. Lawsuit conciliation and reconciliation. Lawsuit conciliation is the mediation presided by the court in the lawsuit.
By China Civil Litigation Law, the conciliation shall follow three doctrines, namely the doctrine of voluntariness, the doctrine of fact finding and the doctrine of legality.
The conciliation agreement entered into by the parties under the above three doctrines, the court will issue a civil conciliation statement, which could be enforced by the court shall one party failed to fulfill the statement. On the other hand, for the statement shall contain the fact o the case by law, which however is argued by the parties; therefore, to the argued cases, it tends to sign a out-of-court reconciliation agreement with the presiding of the court in the practices, after which the plaintiff will withdraw the lawsuit. For any party?s failure to perform the reconciliation agreement, the other party may also apply for the enforcement of the court.
III. The conciliation of enforcement. The so-called conciliation of enforcement is the conciliation agreed by the parties in the phrases of conciliation.
By the Civil Litigation Law, in the enforcement, when the parties agree the conciliation, the enforcement judge shall make it the record into the minute which shall also be signed or sealed by the parties. Once one party failed to perform the conciliation agreement, the court may revive the enforcement of the effective legal document basing the parties? application.
More posts on our website:
1. No ?iPad? Chinese trademark right for Apple after payment in the transaction, and our analysis??the Key points to the trademark transaction under the frame of China laws;
2. According to China Court?s First Instance Judgement, Apple Loses the iPad Trademark;
3. The Extension of the iPad Trademark Battle: Proview Charged iPad Distributor GOME in China;
4. Before 2nd Instance of iPad Trademark Dispute: iPad was Withdrew in Some Cities by Local Chinese Government;
5. Once Apple Lost iPad Trademark: Would There be A Name Change on iPad3 in China?
6. When Could Come the Decision of the 2nd Instance on the iPad Trademark Dispute?
7. Latest News: Proview Plans to Apply for iPad Import Prohibition in Custom;
8. iPad Trademark Dispute: Amazon China Stops Selling iPad on Demand of Apple;
9. Where Apple?s Confidence Comes from in iPad Trademark Dispute?
10. iPad Trademark Battle and China Corporate Personality Confusion System;
Author: Mr. You Yunting
Founder & Editor-in-Chief of Bridge IP Law Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
Email:?Bridge@chinaiplawyer.com, Tel: 8621-5213-4900,
You can also find us on?Facebook,?Twitter?and?Linkedin.
Bridge IP Law Commentary is a website focus on the introduction of commercial laws in China, especially the intellectual property laws. All the posts here are our original works.?And all news or cases referred here are from public reports, and our comments or analysis are of due diligence, neutrality and impartiality, representing our own opinions only and are our original works. You may contact us shall you have any opinions or suggestions.
happy thanksgiving kennedy assassination kennedy assassination jfk assassination pie crust recipe heritage foundation dancing with the stars results 2011
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.