In April 2007, the United States filed an application with the DSB of WTO with respect to the issue of criminal law protection mechanism of intellectual property rights in China, which was the first dispute accepted by the DSB arising out of the issue of criminal law protection mechanism of intellectual property rights. The core of the dispute of the case is how to interpret the “commercial scale” under Article 61 of the TRIPS Agreement as the “criminal threshold’’. It can be seen from the practice of the interpretation of the DSB that while each WTO member is entitled to interpret the term “commercial scale”, the boundary of interpretation is subject to Article 61 of the TRIPS Agreement. It is unnecessary for China to lower her “criminal threshold”, since China’s criminal law protection in intellectual property policy is in compliance with the TRIPS Agreement. In fact, the United States should change from lowering the criminal threshold to how to strengthen the criminal crackdown on piracy under the circumstance of lowering the price of genuine works when imposing pressure on China in the protection of intellectual property rights.
Public domain is a core rule of copyright law, under which various creative materials are available for an author to use without charge or liability for infringement, hence ensuring the effective implementation of copyright law. Public domain is characterized by openness, public ownership, irrevocability and formality. Based on the premise that the author’s work will not be interfered, public domain ultimately aims at the enlargement of its own universe and prosperity of the culture of human society. Its introduction into copyright law satisfies both historical and logical demands. Without its acknowledgement, copyright cannot be justified. In that sense, public domain and copyright can be deemed as twins. Public domain is not only an existing institution, but also an ideological tendency or a methodology. It has evaluative and inspective values towards copyright. It is an important precondition of copy-rights, and what is more, an important measure for controlling the expansion and realizing the purpose of copyright.
Cultural products are commodities with cultural contents, which are neither equivalent to cultural relics nor ordinary articles. Such dual natures bring forth divergences in trade policy, mandating the generality and particularity of trade rules. The WTO rules lay more emphases on free trade while the United Nations Educational, Scientific and Cultural Organization put more stress on the free exchange and diversity of cultures. Nations enjoy cultural sovereignty over their cultural policies and administrative measures. The rules of intellectual property rights also influence trade in cultural products. To develop trade in cultural products, science and technologies shall be employed to create diversified and competitive products of distinct cultural values.
The Enterprise Bankruptcy Law has designed the regime for debtor’s senior managers to bear civil liabilities, while the framework design concerning the prosecution mechanism of civil liabilities is still unclear. How to establish a prosecution mechanism of civil liabilities of debtor’s senior managers in line with the purposes of the bankruptcy regime is a substantial issue during the implementation of Enterprise Bankruptcy Law. The realization of the civil liabilities regime of debtor’s senior managers depends on the establishment and operation of a relatively well-developed prosecution mechanism of civil liabilities. The focus of the prosecution mechanism of civil liabilities is to determine the subject of prosecution of civil liabilities, the way to realize civil liabilities, and the special hearing proceedings and authorities of the court. Taking steps to clarify and improve the prosecution mechanism of civil liabilities focusing on the subjects of prosecution (debtor’s senior managers) and authorities of the court, is the essence and systematic safeguard of realizing the civil liabilities regime of debtor’s senior managers in the Enterprise Bankruptcy Law.
The determination of corporate executive compensation is a kind of affiliated transactions including special conflicts of interest in the company. The regulation of executive compensation by law is extremely necessary but plays a limited role, and the scope and mode of such role are specific. The due process and information disclosure system in determining executive compensation prescribed in company law and securities law, the policy guidance of the tax legal regime, and the active and prudential judicial review are the three aspects of the regulation of executive compensation by law, the common goal of which is to ensure and enhance the correlation between executive compensation and corporate performance, i.e., the realization of the principle of “performance-based compensation.”
Aiming at attracting cartel members to surrender or expose illegal acts of others by reducing or exempting them from public law responsibilities, the leniency program in anti-monopoly law is an effective mechanism throughout the world to discover and crack cartels. The leniency program can be divided into various categories, all of which are based on three preconditions: Filing an application, providing effective information and fully cooperating with anti-monopoly authorities. China has a legal tradition similar to the program as well as legal grounds for establishing such program. However, implementation of the program in China may face potential problems arising from various factors including inner conflicts of the anti-monopoly legal regime, ambiguity of enforcement rights and weakness and lack of administrative law liabilities.
The Regulations on Marriage Registration promulgated in 2003 advocates the ideas for autonomy of private law, such as “autonomy of individual will”, “self responsibility” and “self-determination right”, ushering a new era of Chinese divorce registration system from supervision by employed institution to self responsibility, however, such issues also result in excessive freedom and insufficient restriction. In setting up the divorce registration system, therefore, it shall also be considered for the protection of disadvantaged parties and minor children so as to ensure the fairness and justice of law and the harmony and stability of society.
Regional Trade Arrangements (RTAs) have proliferated after the birth of the World Trade Organization (WTO). In these years, as the members of RTAs increased considerably, the instruments and formalities of RTAs have been varied, and the scope of RTAs has been expanded. With regards to China, it has changed its traditional view and has been engaged positively in the building its own RTAs. Facing the competition from neighboring countries, China should construct an appropriate strategy on RTAs as soon as possible. Without the derogation of multilateral trade agreement, the RTA strategy should be led by national strategic interest, contain the involvement of various levels of trade agreements, enlarge the scope of regional trade agreements, and expand the potential realm of partners for cooperation, etc.
The nature of the Closer Economic Partnership Arrangement (CEPA) is a free trade agreement under the framework of the WTO. For the purpose of clarifying the legal status of the CEPA and the future agreements between the Mainland and other separate customs territories of China, four options are brought forward: (1) To revise the PRC Foreign Trade Law, (2) to make amendment to the Basic Law of Hong Kong Special Administrative Region of China, (3) to have a special law on the conclusion of the interregional agreements, or (4) to amend the PRC Constitution.