China Legal Update: NCP Outbreak: Double Negative Tests Results Required for Entering into China from France

China Legal Update: NCP Outbreak: Double Negative Tests Results Required for Entering into China from France

NCP Outbreak: Double Negative Tests Results Required for Entering into China from France

According to an announcement published by PRC Embassy in France, as of December 1, 2020, all passengers (both Chinese and foreigners) coming from France to China have to obtain a “48-hour double negative test results” as well as to apply a green health code bearing “HS or HDC mark” before boarding.

This means that in addition to holding a valid visa/Chinese residence permit, foreigners who want to enter China have to go through the above-mentioned double tests.

1. What are the double tests?

The double tests to be conducted are:

(1) a nucleic acid test;

(2) a serology IgM anti-body test.

2. What does 48 hours mean?

It means that the passengers have to conduct the two tests in France within 48 hours before boarding.

3. How to obtain the green health code?

Upon receipt of the negative results of the two tests, foreigners are requested to make a declaration via https://hrhk.cs.mfa.gov.cn/H5/.

It is reported that since October 2020, number of confirmed cases from Europe faced a rapid increase which results in serious control measures implemented in China. As the control measures change from time to time, we advise that passengers shall check again with PRC Embassy and Airline before actual boarding.

(http://www.amb-chine.fr/chn/sgxw/t1835249.htm)

II. Legal News:
1. Hainan Released “Zero-Tariff” Policy for Raw/Auxiliary Materials Imported

The Circular on Hainan’s “Zero-Tariff” Policy for Raw/Auxiliary Materials (the “Circular”) was released jointly by the Ministry of Finance, the General Administration of Customs and State Taxation Administration on November 13, 2020, which came effective as of December 1, 2020. The Circular is issued after releasing the Overall Plan for the Construction of Hainan Free Trade Port on June 1, 20201, as well as two important circulars for granting preferential policies for Individual Income Tax and corporate income tax2.

The Circular further clarifies the general idea introduced in the Overall Plan that “raw/auxiliary materials imported for manufacturing shall be exempted from relevant importing taxes”. By consulting PRC Customs hotline, we understand that it is the first time that China released this kind of local preferential tax policy specifically to be applied on raw/auxiliary materials imported.

To be specific, the Circular provides that for the enterprises registered in the Hainan Free Trade Port as independent legal entities, the following importing taxes will be exempted for imported raw/auxiliary materials under the following manufacturing purposes:

It is noteworthy that if an enterprise failed to meet the above manufacturing purposes, corresponding importing taxes (import duty, import VAT and consumption tax) still apply. For example, for the 1st Purpose, the “Zero-Tariff” raw/auxiliary materials are restricted to be used by the importing enterprises itself. If the raw/auxiliary materials are to be transferred within or leaving the Hainan island, relevant approval has to be obtained and corresponding taxes shall be imposed. Also, for the 2nd Purpose, if the final products are to be sold within the Hainan island or to be further sold to China mainland instead of exporting abroad agreed in the Circular, corresponding taxes shall be imposed as well.

According to the Circular, “Zero-Tariff” raw/auxiliary materials are included in a positive list subject to dynamically adjusted based on the actual needs. The first positive list was published in the Circular already, which covers a total of 169 items, including agricultural products such as cereals and peanuts, resource products such as coal and wood and chemicals such as phenol and acetone, etc. To see more details about the positive list, please feel free to contact us via Asiallians@asiallians.com.

(http://www.gov.cn/zhengce/zhengceku/2020-11/13/content_5561242.htm)

II. Legal News:
2. Newly Issued Judicial Interpretation of Evidence Rule in Civil Intellectual Property Lawsuits

On November 16, 2020, the Supreme People’s Court (« SPC ») issued the judicial interpretation of evidence rule in the field of civil intellectual property lawsuit (the “Interpretation”), in effect since November 18, 2020.

We succinctly summarize the most interesting rules for your reference.

(1) Simplifying the notarization and legalization formalities on extraterritorial evidence:

(a) Exempting PoA notarization and legalization formalities during the second instance/retrial proceedings

In China, a foreigner or a foreign enterprise/organization who wants to file a lawsuit at PRC court is requested to entrust a Chinese attorney/agent to represent himself/itself, and a power of attorney (“PoA”) is requested to be submitted to the court. If the PoA is to be signed outside China, then the PoA has to be notarized by a public notary abroad and then certified by the PRC embassy or consulate abroad.3

The Interpretation clarifies that if the afore-mentioned notarization and legalization formalities of PoA have already been conducted in the first instance proceeding, then, the PRC court will not request the notarization and legalization formalities to be conducted again during the subsequent proceedings (e.g. second instance/retrial proceedings).

(b) Exempting the notarization and legalization formalities on certain evidence sourced outside China:

If an objecting party in a lawsuit challenges any evidence sourced outside China only due to that notarization and legalization formalities have not been conducted, the court will not support the objecting party under the following situation:

• the evidence has been confirmed by an effective PRC court judgment;

• the evidence has been confirmed by an effective arbitration award;

• the evidence is from the public publications or patent documents, etc. that can be obtained from the official or open sources; and

• the evidence has been proved its authenticity by other evidence materials.4

(c) Exempting legalization formality on evidences of which the objecting party recognizes the authenticity

If an objecting party in a lawsuit challenges any evidence sourced outside China only on the ground that it has not gone through the legalization formality, while on another hand recognizing the authenticity of such evidence, then the court will reject the challenge raised by the objecting party.

(d) Exempting Legalization formality on evidence with certain witness testimony

If the evidence authenticity can be further confirmed by witness testimony and the witness indicates that he/she is willing to accept punishment if he/she gives false testimony5, then the court will reject the challenge raised by the objecting party who only has the excuse that the evidence has not gone through the legalization formality.

(2) Strengthening Protection over Trade Secret in Civil Procedure

If the evidence involves trade secrets or other business information that needs to be kept confidential, before the litigation participants access to the information, the PRC court shall require the relevant litigation participants to

• sign confidentiality agreements and make confidentiality commitments; or

• order them to not disclose, use or allow others to use the confidential information for any purpose other than the litigation.6

(3) Detailing factors to be considered on evidence regarding license fee for Damages Calculations

If the party’s claims are to determine the amount of damages by referring to intellectual property license fee, the PRC court may examine and determine the evidence according to the following factors:

• whether the license fee is actually paid and the method of payment, and whether the license contract is actually performed or whether a record-filing is actually filed at PRC Trademark Bureau.

• the content, method, scope and term of the right to use the license;

• whether there is an interest relationship between the licensee and the licensor; and

• general standards for industry licensing.7

(http://www.court.gov.cn/fabu-xiangqing-272241.html)

Should you have any inquiry, please contact us at asiallians@asiallians.com. As always, Asiallians remains at your service and our team are currently mobilized in our offices in China, Hong Kong and Taipei.

 

1.See Asiallians’ article for the overall plan:
http://asiallians.com/en/china-legal-update-ncp-outbreak-fast-track-visa-application-foreigner-employees/

2. See Asiallians’ article for CIT and IIT policy : 
http://asiallians.com/en/china-legal-update-ncp-outbreak-update-beijing-covid-19-outbreak/

3. Article 264 of PRC Civil Procedure Law.

4. Article 8 of the Interpretations

5. Article 9 of the Interpretations

6. Article 26 of the Interpretations

7. Article 32 of the Interpretations

 


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