China drafts law protecting foreign IP and prohibiting forced tech transfer | Hacker News Reader

China drafts law protecting foreign IP and prohibiting forced tech transfer

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123 pointsmalloryerik65 comments

Funny how the constitution of China is not enforcible. You cannot sue the government against its violation of constitution. On the other hand no one believes in the political rights promised in constitution anyway.

Edit: I am prepared to be downvoted. Running China mostly depends on the use of administrative branches. The law enforcement agencies, the prosecution agencies and the the courts are all subdivisions of corresponding governments, under the direction of corresponding party committee. The people‘s congress should supervise the government, de jure. But that only happened in a parallel universe.

Not sure why you think this will be down voted.

We learn in junior (or senior highschool) China's legal systems has a few fundamental issues: 有法不依 (laws are ignored), 执法不严 (laws are not enforced effectively). Those basically cover the problem you mentioned about the government.

Then the real question is why such a seemingly negative statement is favorable to the CPC.

If we rehearse these lines as Westerners, are we repeating a piece of propaganda? I think so.

My feeling is that the important narrative for the CPC is, “Everyone has it bad.” It keeps people from questioning why senior Party members have it so good and how.

It's not favorable

It's just that these statements are taught to students, but they are not following the spirit of these statements either.

Do what I do, not what I say. And people are not really having the mentality of behave according to rules and laws.

I just point out that OP should not be down voted, as what op stared is universally known as a fact, it's just not only apply to government or rich and powerful.

"Everything is fine" would be laughed at and dismissed. The best message that will be even slightly accepted is that there is progress. So admitting the issues with the legal system is part of that narrative of progress and improvement.

Its the opposite of the described above. Constitution is a set of regulations on governments power, to make sure that its not too powerful, but what you said is just like government is not strong enough or isn't enforcing it's rule strongly enough. See the difference?

If a small percentage of people that break a law are held accountable than this abirtarty enforcement is a different type of power.

Now it's more like 严格立法普遍违法选择执法

abusive laws, mass violations, selective enforcement.

I took part in Helsinki University China Law week last spring, with prominent Chinese law scholars taking part.

A professor from Peking University Law School told the audience how he had asked during a lecture is there anyone who cares about the Chinese constitution. Nobody reacted. After a moment of silence a student finally spoke up and said: "That's the wrong question. The question is, is there anyone who cares about the Chinese law in general."

> You cannot sue the government against its violation of constitution.

This is also true of the US government; it's the purpose of standing requirements.

I’m not a legal scholar but I’m pretty sure Marbury v Madison pretty conclusively decided that the United States judiciary certainly does have the authority, through suit, to decide constitutionality of laws and to overturn actions that are contrary to the constitution.

You, as a citizen, cannot sue the government under the theory "the government is violating the constitution". In order to have standing to file the suit, you must have suffered a particular injury related to the government's illegal conduct; the fact that the government is violating the law is not considered an injury.

The US court had blocked the government's ban on asylum seeker, as an example from (very) recent memory.

Can't stress enough how broken the Chinese judiciary is. You'd think the bias has to do mostly with big cases involving huge corporations. Unfortunately I learned first hand how crooked the system is. The laws don't matter when the other (Chinese) party submits obviously fake documents as evidence and gets away with it. Don't ever under any circumstance expose yourself to the Chinese legal system.

And thinking of this given how common the problem of permissiveness towards lying and fraud in China is, I guess even as a foreigner you could play this game and get away with it. So there doesn't even have to be the most primitive nationalistic bias going on. Most simply won't do this because of how tough our cultures are on such behavior. And even if you do you're still disadvantaged because of your lesser knowledge of the system and/or language.

Couldn't edit so made a new comment.

Without trying to get too political, using similar styles of lying can get you to become the US president. It's not about the lie itself as much as the willingness to bend the truth to fit whatever the narrative is.

Again, not trying to start up political discourse, but just want to point out this is not an inherently Chinese thing. It's more of a totalitarian thing really. Do/Say whatever to get into power and then stay in power.

You don’t want to get to political, but the US is a totalitarian regime with a president who lied his way into office? I think you missed the mark a little there.

You can say a lot about Trump. But he was the most honest politician during the campaign. He told America exactly who he was and exactly what his base wanted to hear.

I’m not actually saying anything about him. I’m just astounded by the ridiculous contradictions in the parent comment.

Telling your base exactly what they want to hear doesn't make you honest. There were a campaign slogan that he later said during another rally was just bullshit but he said it because it played well. There was a Daily Show where they showed it but I cant find it now but I can find things like this which illustrate the point: https://www.independent.co.uk/News/world/americas/jared-kush...

Corrupt and selective-outrage motivated Judiciary systems in China, former USSR republics and many countries in Africa -- is exactly what will continue to prevent citizens of these countries to want to stay there.

Corruption of law enforcement (including FBI), pay-to-play corrupt politicians, and selective-outrage judiciary system -- is causing enormous damage to US credibility (and to continuing dominance of US dollar as peg currency).

This is one of 3 reasons why Trump was elected, and this is what he is fixing as well (and it is hard).

(the other two are: a US president must put US citizen's interests prioritized first.

Second, is that policy and economic decisions MUST be based on merit, not wordsmithing exemplified by the smoke and mirrors of political correctness).

I guess that’s why foreign investment bankers do so well there.

Chinese vs international = Chinese win. No exception allowed

https://www.nytimes.com/2018/05/28/business/ivanka-trump-chi...

here's an exception.

That is a classic example of exception proving the rule.

https://www.bbc.com/news/world-asia-38246196

https://www.plasticsnewseurope.com/article/20181109/PNE/1811...

https://lawstreetmedia.com/blogs/ip-copyright/new-balance-wi...

do you need more?

The Chinese win if they only have to pay pennies:

> The three companies owe a combined $1.5 million to New Balance. But while that sum may not seem like much, it’s more than American companies usually get.

Pennies on the dollar, Chinese win.

Ps. First link didn't receive damages and only partial win? 2nd link is better, but I'm sure copying Lego in China earned a lot more. So, still pennies om the dollar.

These articles you linked really don't proof a thing, just that some companies pay a minor fine. I'm suprised no one else sees this..

Yeah, no exception there... Chinese still win ( zte)

China’s Chief Justice Rejects an Independent Judiciary

https://cn.nytimes.com/china/20170119/china-chief-justice-co...

Quote: “We should resolutely resist erroneous influence from the West: ‘constitutional democracy,’ ‘separation of powers’ and ‘independence of the judiciary,’” Chief Justice Zhou, the head of the Supreme People’s Court of China, said in a speech to a group of legal officials in Beijing. “We must make clear our stand and dare to show the sword.”

The "show the sword" metaphor is intriguing. Show it to whom? To anyone who would challenge a central party official?

Although the government will still have the right to expropriate the property of foreign investors under special circumstances, the new draft law requires that the process must be done through legal procedures and include “fair and reasonable” compensation.

Reading between the lines: no guarantee of any legal or financial protections. Your case can be deemed a special case, or go through the same "due process" that foreign firms have been subjected to for decades that typically end up benefiting the joint venture partner or domestic industry. And, even if you win, good luck getting paid.

Business as usual in the PRC.

https://www.caixinglobal.com/2018-11-28/paid-in-china-bill-c...

As someone that has had an embedded product completely ripped off in China (well, it means we’ve arrived!)...

Any and all talk about China reforming IP laws fall squarely into ”I’ll beleive it when I see it”.

Give some, take a lot. Considering the latest actions of China, I think this is just a bait and switch.

If you don't believe me, read https://en.m.wikipedia.org/wiki/The_Book_of_Swindles

Law in China is ridiculous. Don’t forget Chinese government arrest more than 100 lawyers in last two years

Is the punchline, “It’s a good start?”

With a population of over a billion, that's a really low number. The EU and the USA together have around 850 million people, and I'd be surprised if they didn't arrest a hundred lawyers within the last two years too.

One person in a thousand is a lawyer = a million lawyers in China. One lawyer in a thousand is a criminal = a thousand lawyer criminals in China.

The scale of the country boggles the mind.

We know China is a big country. Did you actually assume the issue was the commenter wasn't aware of that? Incredible.

https://www.bbc.com/news/world-asia-china-42743961

> A prominent Chinese human rights lawyer has been detained while walking his child to school, his family says.

> Yu Wensheng, a vocal critic of China's ruling Communist Party, was seized by about a dozen people, including a Swat team, after he left his flat with his son on Friday morning, his wife said.

[..]

> It is not clear where Mr Yu is being held, and local police told the AFP news agency they were not aware of his detention.

> His wife, Xu Yan, told Reuters news agency: "I have not received any legal document about his detention and don't even know what crime he is suspected of committing."

[..]

> Mr Yu, a former commercial lawyer, has worked on many sensitive cases, including defending other human rights lawyers detained by the government.

They're criminals in the eyes of the Chinese government. It's a bit like declaring people murdered by drones enemy combatants because they were murdered by drones -- not good enough.

There's a saying in China:

Legislation is stringent, enforcement is selective, violations are pervasive.

And there is always fire prevention paperwork.

Russian variant of the same: "The severity of Russian laws is compensated by optionality of compliance with them." This, and the lack of independent judiciary branch, actually gives the government total power over the individuals and businesses. Laws (including tax laws) are written such that there's really no way to live and not break any of them, which is why the government always "has something on you" if it wishes to prosecute you or just take your money because you don't "share" it with government officials.

"Do you really think we want those laws to be observed? We want them to be broken. There is no way to rule innocent men. The only power any government has is to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking the law. Create a nation of lawbreakers and then you can cash in on the guilt." --Ayn Rand

She was speaking from experience.

That's one aspect, the opposite side of it is if you don't violate the laws you can't survive coz everyone else is doing so, powerful ones even get free pass.

They actually say "The mountains are high and the emperor is far away..."

At this point, if any country or countries with cheap plentiful labor gets it stuff together this could cause a problem.

China isn't that cheap anymore actually, a lot of their value in certain areas is that they have been doing them for a long time so are pretty good at it now.

China is becoming (or probably already a good way into) becoming 80's Japan

What comes next is anyone's guess.

The world is actually rather quickly running out of dirt poor people.

This is a very good thing, but it's also a world that has never existed before.

But then it would be those cheap countries stealing IP. Just like Japan, South Korea, Taiwan, and China before them.

I think the hope is that won't also be super protectionist too

And the United States was notorious for IP theft before them.

Fun Fact: the word Yankee is Dutch for pirate - not a coincidence.

there was no world trade organization or global free trade agreements back then.

Not to mention the most common thing the US is accused of was a former worker bringing his knowledge to the US and recreating a factory from memory. He didn't get paid by the US government to steal blueprints like China does today

Welcome to Vietnam baby. Even a perennial underperformed like the Philippines has ~5% a year growth. Things are getting better everywhere. Even Africa has bright spots like Ethiopia, Nigeria or Ghana.

A shorter and more concise article https://www.dawn.com/news/1453299

If read the article well, you will see that really nothing changes

> When in place, the new law would bar local governments from restricting market access for foreign firms and from forcing them to transfer technology.

> This will ensure foreign investors would enjoy the same privileges as Chinese companies in most sectors except those excluded on a “negative list”.

This is exactly how it is right now.

There are really not a single national law saying that somebody has to transfer technology to a joint venture partner.

The few cases of local provincial and subprovincial officials instating any extra requirements are just their "administrative creativity," and Beijing really doesn't mind humiliating local level officials some more few more times.

China is build on this "administrative creativity", 27K km of high speed rail is a prime example. Nobody will seriously work to harm Chinese giants.

Still, better than a law that says foreign companies must hand over everything and local competitors don't have to pay any royalties.

We win, trade war over!

Laws mean nothing unless they’re enforced. And, people have a reasonable expectation - and confidence - via anecdotes and lived experience, that you won’t be pressured via informal means to take actions prohibited by law.

OK, so laws are generally not followed in China.

Is it not at least true that if China was going to start following these rules, making a law would be one of the steps that would be part of the process?

One day, if the Rule of Law ever means something of quality, substance and worth to your average PRC citizen, sure, having a law on the books might be helpful.

"Foreign investment law", does that implies the "forced technology transfers by administrative means" is still OK if it is enforced upon domestic companies?

Great first start, but talk is cheap. What happens on street level will be more informative, I wish there was a way to measure this ...

Yay for China. Too bad 99% of the businesses and people there don’t care.

Good luck getting the law enforced fairly, though.

Okay, so China continues to play the game of make believe...

The real news will be when the US empire stops trying to force the concept of imaginary property.

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