Wednesday, March 17, 2010

Chinese Courts Are Getting More Independent, But Rule Of Law Needed To Enforce IPRs Is Far Away

In my thesis 'Paper Tiger or Roaring Dragon' I come to the conclusion that the lack of effective enforcement of intellectual property rights in China can be partly explained by some extra-judicial factors, such as:

- no rule of law (where the rule of law has the supremacy, instead of the government);
- lack of transparency;
- lack of an independent judiciary;
- non-uniform application of laws;
- local protectionism;
- corruption and lack of education;
- lack of expertise in and respect for intellectual property;
- market access restrictions.

Professor Stanley Lubman has an interesting article, see here, about legal reform in which he refers to 'China's Courts: Restricted Reform', an excellent paper written by Professor Benjamin Liebman. In it Professor Liebman determines that Chinese judges are much more educated then ever before and that in case of a difficult case courts are often consulting other courts at the same level (horizontally) instead of asking advice of a higher court (vertically). This makes the judiciary more independent and less usable as an instrument to implement the policies of the government. Professor Liebman contends that therefore the government uses the media to influence the opinion of the population in some cases, so that they can mobilise popular protest against a court decision. With the result that some court decisions are overturned because of the "vox populi".

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