Haworth & Lexon Law Newsletter

No.1, 2002 (Total:No.5)    Jan. 20th, 2002

Edited by Haworth & Lexon  

Guidelines:

?SPAN style="FONT: 7pt 'Times New Roman'">         Regulations on the Protection of Computer Software was amended and put into force on Jan.1^st, 2002

?SPAN style="FONT: 7pt 'Times New Roman'">         Rules on the Management of Listed Company was issued on Jan.7^th, 2002

?SPAN style="FONT: 7pt 'Times New Roman'">         Latest Laws and Regulations

1     Regulations of the People¡¯s Republic of China on Administration of Import and Export of Technologies

1     Regulation of the People's Republic of China on the Administration of the Import and Export of Goods

1     Regulations of the People¡¯s Republic of China on International Ocean Shipping

1     Regulations promulgated by the Supreme Court of P.R.C on Evidence for Civil Cases

1     Circular issued by the Supreme Court of P.R.C on Accepting the Cases Resulted By the False Statement and Publication In Securities Market

  Strengthen the Law Enforcement, Promote the Protection of Computer Software  

The State Council issued the newly amended ¡°Regulations on the Protection of Computer Software¡± at the end of 2001, with the background of lots of debates arising on the level of computer software protection.  The regulation shall enter into force on Jan. 1^st, 2002.  The regulations are based on the ¡°Copyright Law¡± which is newly amended on Oct.27^th, 2001.  There are totally 5 chapters and 33 articles, which regulate the definition of computer software, content of the right on software copyright, ownership of copyright, using certification, transferring, and tort liability, etc.  Meanwhile, the following aspects have been amended in the ¡°Regulations on the Protection of Computer Software: which are worthy of highlighting:  

1.       Keep conformity with the newly amended Copyright Law with extending the scope of computer software right.   

The content of authorizer¡¯s rights have been extended to 9 items, including right of rental and right of communication of information on Internet, which play a significant role.  Providing the protection of these two rights indicates that any computer software cannot be rented or communicated via Internet without permission.

  2.  Extend the scope of infringement, details are as follows:

a)         Legalize technique measures aiming at Anti-Piracy

b)        Malicious deleting or altering electronic information of administrative right of software¡± should be regarded as a way of infringement.

c)        The publisher, producer, issuer, renter of software copies shall bear the legal responsibility, if they couldn¡¯t show any proof on the legal authorization or source of copies, which they publish, produce, or issue, rent.

d)        The regulation provides the liability of the software¡¯s final users.  The holders of infringement copies shall stop using the copies, destroying the copies or paying reasonable fees.  But they shall not bear the compensation liability on condition that they don¡¯t know and have no reasonable reasons to know the software are infringement softwares   

3.  Deleting chapters on administration of registry of computer software.  In the new regulation,

only one article provide registry of computer software.  Besides, the protection period for the software copyright shall be basically fifty years.  The protection period shall be the lifetime of the author and fifty years after his death.  

4         According to the amended regulation, the situation of ¡°A work may be exploited without permission from and without payment of remuneration to, the copyright owner¡± can be only applied to the ¡°use of the software by installing, displaying, transmitting or storing for the purpose of study or research of the designing thinking or principles.¡± While the free use of ¡°copies for non-commercial use, such as teaching, researching, running public affairs, etc.¡± has been deleted.  

Furthermore, the regulation has offered more ways to right holders to self-protect their own rights, including: apply to the People¡¯s Court for preliminary injunction, property and evidence preservation before initiating legal proceedings.

Standardizing the Management of Listed Company in order to Protect the Right of the Investor  

In order to promote the establishment and consummation of modern enterprise management system, and standardize the running of listed companies, China Securities Regulatory Commission and State Economics and Trade Commission jointly issued ¡°Rules on the Management of Listed Company¡± on Jan. 7^th, 2002.  With the core of standardizing the management of listed company and protecting the right of the investors, the principle clearly states the basic principles, the realizing way of protection for invertors¡¯ right, and the basic conducting norm and working ethics obliged by the superior management staff of listed company, such as: directors, supervisors, managers.  

The rules strengthen the protection of the investors, especially the minority shareholders. The rules lay emphasis on the equal treatment and status of all investors.  The shareholders have right to protect their rights and interests through legal ways.  Meanwhile, it is still time-taking to realize the shareholders¡¯ litigation right completely.  Now, only civil tort cases resulted by the false statement and publication in securities market can be conditional accepted. While other cases on infringement of shareholders¡¯ right are not accepted.   

The rules provide special articles on protection of the minority shareholders, such as voting right collected by board of directors, independent director and other shareholders.  The listed company should guarantee all the shareholders have equal opportunity to attain the information about the company. 

Latest Laws and Regulations

  1.       In order to keep conformity of the WTO¡¯s requirement and standardize the administration of import and export of technology, the State Council promulgated ¡°Regulations of the People¡¯s Republic of China on Administration of Import and Export of Technologies¡±, which shall enter into force on Jan. 1^st, 2002.  According to the new regulations, patent right transferring, patent application transferring, licensing of patent application, know-how transferring, technical service and other forms of technology transformation shall be subject to the regulation.

2.       Regulation of the People's Republic of China on the Administration of the Import and Export of Goods¡±, which will be valid on Jan. 1^st, 2002, was promulgated by the State Council.  The regulation can be applied to any trade activities relating to commodities export and import from Chinese Duty Territory. 

3.       The State Council released Regulations of the People¡¯s Republic of China on International Ocean Shipping¡±, which shall enter into force on Jan 1^st, 2002.  The regulation shall be applied to international shipping transportation business and other auxiliary running businesses.  According to regulation, merging, acquisition between operators of international shipping transportation business shall be approved by transportation governing institutions of the State Council.  The agreement of merging and acquisition is in the same case.

4.       The first judicial interpretation on evidence for civil litigations Several Regulations on evidence for civil litigations is released by the Supreme Court on Dec.21^st, 2001.  The regulation, entering into force on April 1^st, 2002, plays a significant role in promoting the reform of civil litigation. 

5.       Civil cases resulted by the false statement and publication in securities market can be conditionally accepted on Jan. 15^th in the light of Circular issued by the Supreme Court of P.R.C on Accepting the Cases Resulted By the False Statement and Publication In Securities Market.  The premise of accepting case is valid punishment decision with the content made by China Securities Regulatory Commission or its branches.