This March, 59-year-old Judge Jiang Zhipei handed in his resignation. At the end of August, the NPC Standing Committee accepted his request and he is no longer a member of the Judicial Committee of the Supreme People’s Court (“SPC”), Chief Judge of the Third Civil Tribunal of SPC and Judge of the Third Civil Tribunal.

After devoting 40 years to his work, Jiang Zhipei finally has the world off of his back and has reached the state of “out of office, out of danger.”

His resignation ahead of his expected retiring age easily aroused the suspicions of some. Faced with much speculation, and even rumors, he explained in a quite “Zen” style: “Everyone has to face it. The circle of birth, senility, illness, and death is a universal rule that no one, and nothing in this world, can escape from. This has nothing to do with being ‘gloomy’ or ‘mournful’ because what comes next is young, flourishing, and prosperous. A new life is just behind, beside, or just ahead.”

Taking off the military uniform and putting on the judicial robe

Jiang Zhipei was born in October 1949; he is the same age as New China. Before the “Cultural Revolution,” he was a student at the Beijing No.13 High School and was addicted to studying English. Today, he still remembers his English teacher, an orthodox intellectual who had been an interpreter in the armistice talks between China and the United States and the first lesson he gave in the class room near Yinliu Street. Even many years later, when Jiang became the Vice President of the Beijing Xicheng District People’s Court, he still wanted to improve his English. However, in 1966, when he had not graduated from junior high school, his life was forever changed by the “Cultural Revolution” and he had to say farewell to his beloved English and further education.     

In 1968, after a period of military training, Jiang finally faced turning points: the educated urban youth began to go and work in the countryside and mountain areas; the country began the process of urbanization; the Sino-Soviet relations deteriorated; the Northern border was in a risky situation. Then, on June 18, the Heilongjiang Production and Construction Corps of Shenyang Military Region of the Chinese PLA were founded and Jiang Zhipei became a member. In response to the government's order “to open up the wasteland and garrison the border region, to fight against imperialists and revisionists, to defend the border and to construct the border area”, Jiang went to the Great Northern Wilderness region with many educated urban youths. He lived in the Tongjiang County in Helongjiang Province, near the borderline between China and the Soviet Union. Later on, the Treasure Island Campaign began.
“I have been a gunner, lumberman, a well sinker, a quarrier, a farmer and a groom- you name it.” Jiang Zhipei recalled his experience in the Sanjiang Wetlands. When Jiang was the monitor of the fifth Regiment in Qinglong River, he led a squad to find lumber. They got lost in a snowstorm and had to walk through the snow through the night with lumber on their tractor.

“Being frozen and starving to death was actually quite frequent at that time. But I told myself that I was the leader; I must bring them home…” said Jiang. If his team members were frozen or starving paralyzed on the ground, he kicked them, beat them, and dragged them forward, until they were found by a rescue team at dawn. At last, no one lost his life or was even seriously frost-bitten.     

He worked for 11 years in this gelid, wild north when he was 30 years old. Compared to other intellectual youths, the instructor-titled Jiang Zhipei had more access to cultural knowledge. In his spare time, he always “stealthily” threw himself into his English, but he never imagined the “old buck”—examination, could meet him again in July just after he left the border. It was in 1979.

Then came the entrance examinations. During the 1970s and 1980s, a great number of job opportunities were created within society to meet the needs of returning intellectual youths who had been working in the countryside. It was said that the examination was proposed by Deng Xiaoping to avoid malpractice. It was through this process that Jiang Zhipei successfully entered the Beijing Xicheng District People’s Court. Thus, the judicial robe replaced his military uniform. He became a judge instead of an intellectual.

A civil action judge before the General Principles of the Civil Law was promulgated

“At that time, I had to deal with dozens of cases in one month at least. I can still remember I dealt with 28 cases in one month. It was really a high pressure. Although there are more cases now, the working condition is better, and the pressure is not as high as before,” said Jiang Zhipei.

After being appointed as Judge of the Civil Tribunal for the Xicheng District People’s Court, he was usually seen riding his bicycle through streets and lanes in the Erlong Road area, which was his “sphere of influence.” The cases he was involved in for judgment usually involved neighborhood disputes, unauthorized construction, rental problems, or the relocation of residents.  Although trifling, they filled the new judge with stress and a strong sense of responsibility.

“Many disputes could only be settled through mediation, because in the early 1980s, many civil laws were still waiting to be passed. Only a few policies concerning civil affairs, the official reply from the Supreme People’s Court, and several judicial interpretations could be referred to.” Jiang explained. To educate those judges who had never studied law, officials from Beijing University, Renmin University of China, and the Jiusan Society jointly set up a “Beijing Amateur Law University” to provide a formal legal education to adults.
  
Although it was called the “Amateur University,” the teachers there were not amateur at all. For example, Xiao Yongqing taught Legal History; Gao Mingxuan and Wang Zuofu lectured on Criminal Law; Kang Shuhua lectured on Youth Protection Law; Guo Mingrui and Zhao Zhongfu was a teacher of Civil Law; and Jin Ruilin taught the fresh Environmental Protection Law. Almost all the lectures were about the latest legal research after the reforming and opening-up policy. Through theoretical study, Jiang Zhipei felt that he was far “superior” to those who had received a Soviet legal education, because liberal education in the Soviet era was nearly extinguished. In Jiang’s opinion, work is to put theory into practice to solve problems, but not to indulge in an empty talk.

The General Principles of the Civil Law was promulgated in 1986.  Seven years later, Jiang Zhipei became a civil action judge. “In 1983 and 1984, the Patent Law and the Trademark Law were both passed, but some basic laws, such as the civil law and inheritance law were still under discussion.” according to Jiang.

Jiang Zhipei worked at the Xicheng District People’s Court for 11 years. These years also witnessed the evolution of this civil action judge from an ordinary judge to the Vice President of the Court, which coincided with the improvement of the Chinese poor and China’s previously very basic judicial system. Both the judge and the Chinese judicial system converged at a common point: IPR protection.

In 1990, the Supreme People’s Court chose five outstanding judges from the basic People’s Courts, and Jiang Zhipei was one of them. He became an Assistant Judge of the Civil Tribunal of the SPC, assisting in hearing cases involving foreign affairs and Hong Kong, Macao, and Taiwan affairs, as well as copyright cases.

Hearing a sensational copyright case

Stand higher, and you will see further. The cases Jiang Zhipei dealt with at the SPC were totally different from those he faced when he was in the lower courts. An example includes the sensational controversy over the copyright to the book From Emperor to Citizen – AISIN GLORO PU YI, which crossed Jiang Zhipei’s desk.
 
From filing to final judgment, this case lasted almost ten years. When the lawsuit was first filed as a copyright civil case in 1987, the Court refused to accept the filing, with the excuse that the National Copyright Administration had released the judgment. The President of the Supreme People’s Court at that time, Zheng Tianxiang, ordered the Civil Court to re-investigate the case. Thus, under the SPC’s supervision, the case was finally accepted in 1989, but the judgment was not rendered until six years later.

Although the state organizations concerned in the case opposed the plaintiff, Li Shuxian, the SPC overrode all objections and awarded the copyright for From Emperor to Citizen to Pu Yi personally, which was then inherited by his widow, the plaintiff Li Shuxian. This is why the case was so sensational. Another editor, Li Wenda, who had helped Pu Yi to publish the book, was denied co-authorship and copyright.

 “People at that time did not identify with the market economy and even equaled commodity economy to bourgeois right. So people had no concept of IPR.The press helped to edit and publish this book. Neither did they agree with the cooperation between individuals in one work.” Said Jiang Zhipei, who had read the case files and had participated in all SPC discussions concerning the case, firmly sided with the Court’s judgment. However, controversies over this case have never ceased. Pu Yi’s special identity as China’s last emperor kept arousing people’s “imaginations” because of the unexpected judgment. 

 “Some people did not know the true story; some thought the judgment was benefit-driven. That was completely wrong,” said Jiang Zhipei, “Under that social environment, people did not respect Pu Yi’s intellectual work and considered him to be a prisoner undergoing reform through labor, even though he was the last emperor. By contrast, in their eyes, the publishing house was state-owned and mighty. An individual was very tiny; whereas the state, publishing houses, and editors were very important.”   

In Jiang’s opinion, the SPC was finally in support of civil rights. “This is a setting-things-right case, and it had nothing to do with politics. We realized that we should respect Pu Yi’s intellectual work. We did not do this very well before.”

From beginning to end, every detail of this case was recorded by Jiang Zhipei in his Comments of the Supreme People’s Court on IPR Precedents. He said: “I have written down everything, even those comments that were not so ‘appropriate’ and should not be made public. If I did not do this, no one else would do it.”  

The Pu Yi case means much more today. As Jiang Zhipei remembered: “At the beginning, Li Shuxian’s complaint was rejected everywhere for many years.”

Li Shuxian submitted the complaint to Ren Jianxin, the President of the SPC. Ren was in very bad health at that time and hoped to “get the judgment when he was still alive”. Even when the case was finally filed, the Court was reluctant to make a judgment. Ren Jianxin ordered the claims commission to urge the Supreme People’s Court to make an immediate judgment. The case finally reached a conclusion in 1995. In that same year, the Supreme People’s Court set up its IPR Office. Jiang Zhipei assumed the post of Vice Manager of that office, which is responsible for all IPR issues.

The work of a judge

Since the 1990s, IPR cases have been granted an independent tribunal. Previously, cases involving copyright issues were handed over to the civil tribunal, and those involving trademark or patent disputes were sent to the industrial property team of the economic tribunal. The President of the SPC of the time, Ren Jianxin, had an intimate knowledge of intellectual property. To combine these two parts, the Intellectual Property Office was set up. 

It was at the time that Deng Xiaoping made his remarks on deepening reform during his inspection tour of south China. Sino-US contradictions of intellectual property were intensified along with fast growing trade between them. “You know, Americans always blame us for our poor intellectual property protection,” said Jiang Zhipei. In the next year, the Intellectual Property Tribunal was set up, and Jiang became its Deputy Chief Judge. 

New challenges accompanied new tasks. For judges who had worked on civil cases and economic disputes, IPR cases were totally alien to them. To achieve fairness and objectiveness, they always held meetings to discuss cases, arguing and trying to persuade each other.

 “You cannot say that judgments are simple. Behind the judgment are numerous dissents and discussions.” Jiang Zhipei said. He illustrated this in the case of FERREROS.p.A. vs. Mentresor Food Co., Ltd.: “The case involved an unfair competition claim. Some were against the Mentresor Company and protesting no protection over it. We have also considered these arguments in the retrial. During the trial, the court considered the packaging design of FERREROS.p.A. was unique and their products could be differentiated from others. So it should be protected by anti unfair competition law.”

The Court upheld this judgment, but re-defined some points in the judgment of second instance. Jiang said: “After a retrial, we found two obvious errors in the judgment. One was the amount of compensation. The court awarded 700,000 Yuan, which was inconsistent with the law. Instead, the compensation should have been 500,000 Yuan. The other mistake involved the definition of ‘well-known products.’ Is it in the Chinese market or in the international market? There are also controversial points here.”

Jiang said, many unclear points led to more extensive and in-depth discussions. Then, after several discussions, a common opinion was reached, which was reflected in the final judgment. However, Jiang added that there were also cases where different opinions could co-exist. “In such cases, we would apply the majority rule, but permit the minority’s arguments.” Jiang believed that sometimes the minority’s arguments helped the cases reach justice judgment.

In his opinion, a discussion of different opinions is not meant to hurt anybody’s feelings, because they all aim to arrive at a fair and impartial judgment. A collegial atmosphere gradually formed at the Intellectual Property Tribunal, which fills Jiang Zhipei with great pride. Surely, to form such an atmosphere, judges must devote much energy into it and even sacrifice their spare time.       

 “It is important for judges to spend most of their times working on judgment. We held discussion meetings and had research on cases during the 8 working hours, and thought over the cases and wrote reports in our spare time,” Jiang Zhipei explained, “so many cases were waiting for me; sometimes I had to stay up late at night to write reports.” 

After working at the Xicheng District People’s Court, he formed a habit of “living and learning.” In the late 1990s, he always awoke at two or three o’clock in the morning to draft papers or conduct research. The drafting of relevant judicial interpretations during the period of China’s entry into the WTO almost turned his hair white. When asked about this, he smiled and lowered his head: “see, they are dyed black.”  

Less knowledge and experience compared to foreign judges in the IPR field was not the only hurdle faced by Chinese judges. Their working conditions were also very poor. “When the Intellectual Property Tribunal was set up, there were only a few courtrooms. To open a court session, you spent a lot of time trying to book a courtroom, and sometimes there would be quarrels.” 

Today, the Supreme People’s Court is a distinctive “three-segment” building, combined with three buildings built under the reign of Zheng Tianxiang, Ren Jianxin and Xiao Yang, respectively. During the period when the SPC consisted of a “one-segment building” and a “two-segment building,” court sessions were sometimes opened in the meeting room or office if there were no courtrooms available, which was rather “miserable.”  
 
 “There was even no water during the judges’ intense court session. I especially requested them to serve the courts some boiled water for the litigants and judges,” Jiang said.

Constant efforts

In addition to internal affairs, foreign affairs were also a concern. In 1992, Jiang Zhipei was sent by the Ministry of Education of China to the School of Law at the University of Birmingham as an advanced visiting scholar; thanks to his English skills (he had studied English in college). There, he studied interregional conflict of laws and copyright matters, prepared for the legal conflicts that could occur between the mainland and Taiwan, Hong Kong and Macao, after Hong Kong and Macao’s return to the motherland.

In addition, he and several officials from the Ministry of Foreign Affairs attended a Conference held in Hague to discuss international justice. According to his recollection, “if the card written with ‘中国China’ was raised, we would have to give a presentation. It was a good challenge. Actually, intellectual property is in its nature quite international. If I had not studied English, I could never have been able to do this job,” said Jiang.   

The cases Jiang Zhipei participated in at trial served as a good tool for him to break down the language barrier between the court and foreign experts. With just a few words, people will know whether you are an expert or not. “Tell them what we have done and how we did it. Based on the cases you have heard, they will know your level of expertise. These types of communication are more tangible and effective; more effective than simple publicity,” said Jiang Zhipei.  

He, himself, was greatly enlightened by these international communications. The “hair-whitening” judicial interpretation system is his highest achievement for the 18 years’ work in SPC, because it established a basic judicial protection mechanism for intellectual property. Jiang Zhipei was under a great deal of pressure to draft the judicial interpretation for China’s entry into WTO.
 
“Before 2007, the membership of the Intellectual Property Tribunal was 11, including eight judges and three clerks. Such a formidable task of entering the WTO was entirely left on the shoulders of these 11 people.”  

As the leader, Jiang had a much larger workload than the others. He had to manage, clean up and abolish some old regulations and he was obliged to re-stipulate the judicial interpretations for some major laws, and coordinate the process to form a complete system. All of this work had to be finished within a limited period of time. 

 “In those days, work and study filled my entire life.” However, today he is satisfied with what he accomplished, “because there were no big mistakes in these judicial interpretations, and they received good feedback both in China and abroad.” said Jiang.

In addition, to implement the rule of transparency, which is very important in the intellectual property field, Jiang Zhipei launched a website in 1999, called “Judicial Protection of IPR in China,” and promoted the establishment of the website “China Court” and “China IPR Judgments and Decisions.”

 “In the late 1990s, people were very cautious about the Internet in China considering it to be a big risk and had no confidence in Internet. There was also no specific policy on internet communications. However, intellectual property issues were new and ever-changing. If China wanted to enter the WTO, the related legislation and rules of transparency needed to be clearly defined.” Jiang said.

Jiang wholly devoted himself to the website “Judicial Protection of IPR in China”, including making proposals, design and recruiting editors. The working process was very tough, but the result was pleasing. Many local courts learned from him and established their own “judgments and decisions.” Presently, the SPC also decided to establish a system to make their civil & commercial and administrative judgments and decisions public.

To set up a website is not difficult, but setting up the first one IS difficult. A real success is the accumulation of small efforts. In Jiang’s opinion, “if you want to do something and believe it is right, you should stick to it, even if it is not supported by anyone.”

Three questions for Jiang Zhipei

What did you learn from your experience in the “wild north”?

—Body-building and exercising at the bottom of the society.  Although it was difficult, I still appreciate this experience. The intensive labor helped to build up both my body and will. To achieve a goal, I must insist on following my own way, even if everyone else gives up. 

In your 40 working years, which one is more, things you have done or things you have got?

—It’s certain that I have done a lot. What I have learned is based on what I have done. In my opinion, the most precious wealth I have is my experience and knowledge.  

Are you worried about the continuation of the work you have initiated after your retirement?

—Surely, there will be some deviation from the original path. I think this is normal. Cases are increasing every day, so it is a big challenge to keep the judgment accurate. I have been in charge of the work for these many years. I know it better than anyone else. However, I believe that without me, they can also do the work in the right way and achieve more than I expect. You know, it is a natural law that new things replace the old.   

(Translated by Hu Xiaoying)