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Impartial resolution of disputes in China : an intellectual property perspective Zhang, Yulin

Abstract

Impartial resolution of disputes puts an end to disputes, minding members of society to respect the rule of law and good social order. Civil disputes occur quite naturally between two or more persons. Such disputes can be resolved through third persons, be they judges, arbitrators or mediators. Independence and impartiality of such third persons are the corner stones for the dispute resolution system in modern society. The concept of independence and impartiality may, however, vary in different countries. The dissertation examines whether judicial impartiality is different in the current “independent trial” mode in China. Given differences in culture, legal theory and philosophy, judicial impartiality has different dimensions in countries with different systems of law, whether common law or civil law. The study is conducted through the lens of civil cases involving intellectual property rights (IPRs). Criminal cases are not part of the study. Through comparative case study and media review, the dissertation concludes that differences lie in the standards for impartiality in the corrective justice system in China. Drawing on Canadian case law, traditional philosophy and IPR case studies in China, the dissertation explores the building blocks of judicial impartiality and identifies four standards for judicial impartiality: avoiding conflict of interests, procedural due process, substantive justice and consensus-based impartiality, in addition to the “time” element of impartiality. Despite the differences, observable similarities in the dimensions of judicial impartiality exist in the dispute resolution processes. Based on the findings, I argue that impartiality as well as IPR protection should be raised to the Constitutional level in China. International high standards for impartiality ought to be adopted, while Confucian teachings can be gradually upgraded to fit with equality-based justice administration in the on-going judicial reform in China. With the study of the legal reasoning of judgments in IPR cases, I offer perspectives to illustrate the need to uphold judicial impartiality as a system requirement. I contribute to the contextualized interpretation of judicial independence for the rule of law in China and contribute to the standard building for judicial impartiality in connection with administration of justice in China.

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Attribution-NonCommercial-NoDerivatives 4.0 International

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