Decision of the Standing Committee of the National People’s Congress of the People’s Republic of China on Amending the Construction Law of the People’s Republic of China and the Other Laws has been adopted at the 10th session of the Standing Committee of the 13th National People’s Congress of the People’s Republic of China on April 23, 2019. 2020-05-27
字号:

  Order No. 29

  of the President of the People’s Republic of China

  Decision of the Standing Committee of the National People’s Congress of the People’s Republic of China on Amending the Construction Law of the People’s Republic of China and the Other Laws has been adopted at the 10th session of the Standing Committee of the 13th National People’s Congress of the People’s Republic of China on April 23, 2019. It is hereby promulgated. The amending clauses of Trademark Law of the People’s Republic of China shall come into force as of November 1, 2019. The amending clauses of other laws shall come into force as of the date of promulgation.

  Xi Jinping, President of the People’s Republic of China

  April 23, 2019

  Decision of the Standing Committee of the National People’s Congress of the People’s Republic of China on Amending the Construction Law of the People’s Republic of China and the Other Laws

  (Adopted at the 10th session of the Standing Committee of the 13th National People’s Congress of the People’s Republic of China on April 23, 2019)

  Decision of the 10th session of the Standing Committee of the 13th National People’s Congress of the People’s Republic of China:

  I. Construction Law of the People’s Republic of China is amended as followings:

  Article 8 is changed into “The following conditions shall be satisfied before application for a construction permit:”

  (I) Procedures for approval of use of land for the construction project have been completed;

  (II) The construction project planning permit, if required under the law, has been obtained;

  (III) The progress of house demolishment and resident resettlement, if necessary, conforms to the requirements of the construction of the project;

  (IV) The enterprise for undertaking the construction has been determined;

  (V) The arrangement of the funds, construction drawings and the technical data required for construction are available; and

  (VI) Specific measures are taken to ensure project quality and safety;

  The competent administrative department for construction shall, within seven days from the date of receipt of the application, issue the construction permit for the application that meets the conditions.

  II. Fire Control Law of the People’s Republic of China is amended as followings:

  (I) Article 10 is changed into “With respect to construction projects for which fire control design is required according to the national standards of construction technology for fire control, the system for examination, inspection and acceptance of fire control design for construction project shall be implemented.”

  (II) Article 11 is changed into “For the special construction projects prescribed by the competent department of housing and urban-rural development of the State Council, the construction owners shall submit the fire control design documents for review to the competent housing and urban-rural development which shall be responsible for the result of the review in accordance with the law.”

  For the construction projects other than those prescribed in the preceding paragraph, the construction owner shall provide the fire control design drawings and technical materials meeting the construction requirements when applying for the construction permit or applying for approval of the construction commencement report.

  (III) Article 12 is changed into “Where a special construction project fails to go through or fails to pass the fire control review, the project owner or the construction entity shall not carry out the construction; for any other construction project, where the project owner fails to provide the fire control design drawings and technical materials meeting the construction requirements, relevant department shall not issue the construction permit or approve the construction commencement report.”

  (IV) Article 13 is changed into “For the construction projects for which the application for fire control inspection and acceptance is required under the provisions of the competent housing and urban-rural development of the State Council, the project owners shall, upon completion thereof, apply to the competent department for housing and urban-rural development for fire control inspection and acceptance.”

  For the construction projects other than those prescribed in the preceding paragraph, the project owners shall, after inspection and acceptance, report the same for record-filing to the competent department for housing and urban-rural development which shall conduct random inspection.

  Any construction project that is required under the law to, but fails to, go through, or fails to pass the fire control inspection and acceptance shall be prohibited from being put into use and any other construction project that fails to pass the random inspection conducted in accordance with the law shall cease to be used.

  (V) Article 14 is changed into “Specific measures for examination of fire control design, acceptance check, record-filing and random inspection of fire control for construction projects shall be formulated by the competent department of housing and urban-rural development of the State Council.”

  (VI) Article 56 is changed into “The competent departments of housing and urban-rural development, fire control departments and their staff members shall, according to their statutory functions, powers and procedures, conduct examination of fire control design, fire control acceptance check, and fire safety and prevention inspection in an impartial, strict, civilized and efficient manner.”

  The competent departments of housing and urban-rural development, fire control departments and their staff members shall neither charge any fee in course of examination and verification of fire control design, fire control acceptance check and fire safety and control inspection etc., nor seek any benefit by making use of their duties; they shall not make use of their duties to limit, whether or not in a disguised form, users or project owners to designated brands or sales agencies of products for fire control or designated agencies that provide technical services for fire control or designated fire facility construction organizations.

  (VII) The phrase "fire control departments of public security organs" in Article 57 and Paragraph 1 of Article 71 is changed into "competent departments of housing and urban-rural developments, fire control and rescue departments"; in Article 71, the phrase "examination and verification" is changed into "examination" and the word "construction" in Paragraph 2 is deleted.

  (VIII) Article 58 is changed into followings, viz. In case of violation of this Law, which falls under any of the following circumstances, the competent department of housing and urban-rural development and fire control and rescue department shall, according to their respective functions and powers, order the violator to cease construction, use, production or business operations and concurrently impose a fine ranging from RMB 30,000 to RMB 300,000 on the violator:

  (1) Carrying out a construction project without going through or passing the examination of the fire control design for the construction project in accordance with the law while such examination is required under the law;

  (2)Putting a construction project into use without going through or passing the fire control acceptance check for the construction project in accordance with the law while such acceptance check is required under the law;

  (3) Failing to cease the use of any other construction project prescribed in Article 13 hereof when fire control design of such project fails to pass random examination legally conducted after the acceptance check thereof;

  (4) Putting a public gathering place into use when such place fails to go through fire safety and control check or fails to satisfy fire safety and control requirements upon check.

  “Where a project owner fails to go through record-filing with the competent department of housing and urban-rural development in accordance with this Law after check and acceptance, the competent department of housing and urban-rural development shall order the project owner to make correction and impose on the project owner a fine less than RMB 5,000.”

  (IX) The phrase “be ordered to make corrections or to suspend construction” is changed to “be ordered to make corrections or to suspend construction by the competent department of housing and urban-rural development”.

  (X) Article 70 is changed into“The administrative penalties as prescribed in this Law shall be determined by the competent department of housing and urban-rural development and the fire control and rescue department according to their respective functions and duties, except for those that shall be determined by the public security organ in accordance with the relevant provisions of the Law of the People's Republic of China on Public Security Administration and Penalties.

  The party that is ordered to cease construction, use, production or business operation shall, after completion of rectifications, report the same to the department or authority making the decision and shall not resume construction, use, production or business before passing inspection.

  If the concerned parties fail to cease production, business operation, use or construction as decided within a specified time limit, the department or organ making the decision shall enforce the same.

  If an order to cease production or business operation causes a relatively significant impact on economy and social life, the competent department of housing and urban-rural development or the emergency administration department shall submit the same to the people's government at the same level for decision in accordance with the law.

  (XI) In Article 4, Article 17, Article 24 and Article 55, the phrase "fire control department of the public security organ" is changed into "fire control and rescue department", and the phrase "public security departments, public security organs and fire control department of the public security organ" is changed into "emergency administration department"; the phrase "public security organs and fire control departments" in Paragraph 3 of Article 6 is changed into "emergency administration departments and fire control and rescue departments"; the phrase "public security organs" in Paragraph 7 is changed in "public security organs, emergency administration"; the phrase "fire control department of the public security organ" in Article 15, Article 25, Article 29, Article 40, Article 42, Article 45, Article 51, Article 53, Article 54, Article 60, Article 62, Article 64, and Article 65 is changed into "fire control and rescue departments"; the phrase "public security fire brigades" in Article 36, Article 37, Article 38, Article 39, Article 46 and Article 49 is changed into "comprehensive fire control and rescue brigades of the State".

  III. Electronic Signature Law of the People’s Republic of Chinais amended as followings:

  Delete Item 2 in Paragraph 3 of Article 3; Item 3 is changed to Item 2, viz. “ (2) Involving stop of utility services, such as water supply, heat supply, gas supply and etc.”

  IV. Law of the People's Republic of China on Urban and Rural Planningis amended as followings:

  Paragraph 2 of Article 38 is changed into “Where the State-owned land use right for a construction project is obtained by way of grant, the project owner shall collect the construction land use planning permit from the competent urban-rural planning department of the city or county people's government after receiving the documents of approval, ratification or record-filing of the construction project and entering into the contract on grant of the State-owned land use right.

  V. Vehicle and Vessel Tax Law of the People's Republic of China is amended as followings:

  Add one item to Article 3 as Item 4 , viz. “(4) National comprehensive fire rescue vehicle and national comprehensive fire rescue dedicated vessel with emergency rescue sign”.

  VI. Trademark Law of the People's Republic of China is amended as followings:

  (I) Paragraph 1 of Article 4 is changed into “Any natural person, legal person or other organization desirous of acquiringthe exclusive right to use a trademark for its commodities or services, shall file an application for the registration of the trademark with the Trademark Office. Any application for the registration of the trademark viciously rather than for the purpose of use shall be refused. ”

  (II) Paragraph 3 of Article 19 is changed into “When a trademark agency knows or should know that a trademark registration applied for by the principalviolates the provisions of Article 4, Article 15, and Article 32 hereof, the trademark agency shall not act as an agent for said principal in application for that trademark.”

  (III)Article 33 is changed into “A prior rights holder or a stakeholder who holds that a preliminarily validated and gazetted trademark violates the provisions of the second and third paragraphs of Article 13, Article 15, the first paragraph of Article 16, Article 30, Article 31 and Article 32 of the Law, or any person who holds that a preliminarily validated and gazetted trademark violates the provisions of Article 4, Article 10, Article 11, Article 12, the fourth paragraph of Article 19 of the Law may raise an objection to the trademark bureau within three months from the date of gazette. Where no objection is raised during the gazette period, the trademark shall be registered, a trademark registration certificate shall be issued and the registered trademark shall be gazetted.”

  (IV)The first paragraph of Article 44 is changed into “Where a registered trademark violates the provisions of Article 4, Article 10, Article 11, Article 12, or the fourth paragraph of Article 19 of this Law, or the registration is obtained using fraudulent means or other improper means, the registered trademark shall be invalidated by the trademark bureau; any other organization or individual may request that the trademark review and adjudication board declares the said registered trademark invalid.”

  (V) The phrase “one to three times” in the first paragraph of Article 63 is changed into “one to five times”; the phrase “no more than RMB 3 million Yuan” in the third paragraph of Article 63 is changed into “no more than RMB 5 million Yuan”. The following two new paragraphs are added as the fourth paragraph and the fifth paragraph.

  “When a people's court handles a trademark dispute case, at the request of the right holder, the goods of counterfeited registered trademark shall be ordered to be destroyed except for special circumstances; the main materials and tools used for manufacturinggoods of counterfeited registered trademark shall be ordered to be destroyed without compensation. Or, in special circumstances, the aforementioned materials and tools are ordered to be forbidden from entering the commercial channel without compensation.”

  “Goodsofcounterfeited registered trademark shall not enter commercial channel only with counterfeited registered trademark removed.”

  Clause (3) in the first paragraph of Article 68 is changed into “(3) violation of the provisions of Article 4, the third and fourth paragraphs of Article 19 of the Law”. One new paragraph is added as the fourth paragraph: “For malicious application of trademark registration, administrative penalty such as warning and fine shall be given according to the circumstances; if a trademark lawsuit is filed maliciously, the people's court shall impose penalty according to law.”

  VII .Law of the PRC against Unfair Competition is amended as followings:

  (I) Article 9 is changed into “A business operator shall not infringe upon trade secrets by the following means:”

  (1) Obtaining an obligee’s trade secrets by stealing, bribery, fraud, intimidation, electronic intrusion or any other improper means;

  (2) Disclosing, using or allowing another party to use trade secrets obtained from the obligee by the means mentioned above;

  (3) Disclosing, using or allowing another party to use trade secrets in violation of confidentiality obligations or requirements of obligee on trade secrets;

  (4) By instigating, tempting, helping others to violate confidentiality obligations or requirements ofobligeeon trade secrets, obtain, disclose, use or allow others to use trade secrets of obligee.

  Any other natural person, legal person or unincorporated organization other than business operator committing the illegal acts mentioned in the preceding paragraph shall be deemed as infringement upon trade secrets.

  Obtaining, using or allowing others to use trade secrets by a third party who clearly knows or ought to know that employee, former employee or other units or individuals of obligee of trade secrets have implemented the illegal acts in the first paragraph of this article shall be deemed as infringement upon trade secrets.

  Trade secrets mentioned in the Law refers to any technology information or business operation information which is unknown to the public, can produce economic benefits and about which the obligee has adopted secret-keeping measures.

  (II) Article 17 is changed into “If business operator violates the provisions of the Law, causing damages to others, the business operator shall bear civil liabilities according to law.

  “Where a business operator’s lawful rights and interests infringed upon by unfair competition acts, he may bring a lawsuit in the people’s court.

  The amount of compensation for a business operator who is harmed by unfair competition is determined according to the actual loss suffered due to the infringement; if the actual loss is difficult to calculate, it shall be determined according to the benefits obtained by the infringer due to the infringement. If the business operator maliciously commits an act of infringement upon trade secrets in serious cases, the amount of compensation can be determined as per one to five times of the amount determined according to the above methods. The compensation shall also include the reasonable expenses of business operator to stop the infringement.

  “If a business operator violates Article6, Article 9 of the Law, and the actual loss suffered by obligee due to the infringement and the benefits obtained by the infringer due to the infringement are difficult to determine, the people's court shall grant the obligee compensation of RMB 5 million Yuan according to circumstances of the infringement .”

  (III) Article 21 is changed into “Where a business operator or any other natural person, legal person or unincorporated organization infringes upon business secrets in violation of the provisions of article 9 hereof, the supervision and inspection department shall order it to stop its illegal act, confiscate its illegal income and impose a fine ranging fromRMB 100,000 to RMB 1,000,000. If the circumstance is serious, a fine ranging fromRMB 500,000 to RMB 5,000,000 shall be imposed.”

  (IV) Add one article as Article 32 “In the civil trial procedure for the infringement of trade secrets, the obligee of trade secrets shall provide preliminary evidence to prove that he has taken measures to keep the trade secrets he claims secret and reasonably indicates that the trade secrets have been infringed upon. The suspected infringer shall prove that the trade secrets claimed by the obligee do not belong to the trade secrets stipulated in this law.”

  "If the business secret obligee provides preliminary evidence reasonably showing that the business secret has been infringed, and provides one of the following evidence, the suspected infringer shall prove that it has not infringed the business secret:

  (1) There is evidence to show that the suspected infringer has channels or opportunities to obtain trade secrets, and the information he uses is substantially the same as the trade secrets;

  (2) There is evidence to show that the trade secret has been disclosed or used by the suspected infringer or that there is a risk of being disclosed or used;

  "(3) There is other evidence to show that the trade secret has been infringed upon by the infringer."

  VIII. Administrative Permission Law of the People's Republic of Chinais amended as followings:

  (I) Article 5 is changed into “The principles of openness, fairness, impartiality and non-discrimination shall be followed in the establishment and implementation of administrative permission.

  "The relevant provisions on administrative permission shall be announced to public; If it is not made public, it shall not be taken as the basis for the implementation of the administrative permission. The implementation and results of an administrative permission shall be made public, except for those involving state secrets, trade secrets or personal privacy. Without the consent of the applicant, the administrative organ, its staff and personnel participating in the expert review shall not disclose the business secret, undisclosed information or confidential business information submitted by the applicant, unless otherwise stipulated by law or involving national security or major social and public interests; Where the administrative organ discloses the aforesaid information of the applicant according to law, it shall allow the applicant to raise objections within a reasonable period of time.

  "The applicant meeting the statutory conditions and standards has the equal right to obtain an administrative permission according to law, and the administrative organ shall not discriminate against anyone."

  (II) Add one clause to Article 31 as Clause 2 "Administrative organ or its personnel shall notrequest technology transfer as a condition for obtaining an administrative permission; the transfer of technology shall not be requested directly or indirectly in the course of the implementation of the administrative permission.”

  (III) Article 72 is changed into "where an administrative organ or its staff violates the provisions hereof and one of the following circumstances occurs, the administrative organ at a higher level or the supervisory organ shall order it to make corrections; If the circumstance is serious, the person-in-charge directly responsible and other persons directly responsible shall be given administrative sanctions according to law:

  "(1) Refusal to accept an application for an administrative permission that meets the statutory requirements;

  "(2) Not displaying materials in office premises that shall be disclosed according to law;

  "(3) Failing to perform the statutory duty of notification to the applicant and the interested party in the course of accepting, examining and deciding on the administrative permission;

  "(4) Application materials submitted by the applicant are not complete and do not conform to the statutory form, and the applicant is not informed of all the contents that must be supplemented and corrected at one time;

  (5) Illegally disclosing the business secret, non-disclosed information or confidential business information submitted by the applicant;

  "(6) Requesting the transfer of technology as a condition for obtaining an administrative permission, or directly or indirectly requesting the transfer of technology in the course of the implementation of an administrative permission;

  "(7) Failing to state the reasons for not accepting the application for administrative permission or for not issuing the administrative permissionaccording to law;

  "(8) A hearing should be held according to law but is not held."

  The amending clauses of Trademark Law of the People’s Republic of China shall come into force as of November 1, 2019. The amending clauses of other laws shall come into force as of the date of promulgation.

  Construction Law of the People’s Republic of China, Fire Control Law of the People’s Republic of China, Electronic Signature Law of the People’s Republic of China, Law of the People's Republic of China on Urban and Rural Planning, Vehicle and Vessel Tax Law of the People's Republic of China, Trademark Law of the People's Republic of China, Law of the PRC against Unfair CompetitionandAdministrative Permission Law of the People's Republic of China are accordingly amended and promulgated again according to this Decision.

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