William’s Legal Team

26/04/2020

Shanghai White Paper on Prosecution of Intellectual Property Crimes(2019)
The White Paper, based on the procuratorial function, is a systematic analysis of the intellectual property right (hereinafter referred to as the “IPR”) criminal cases handled by the procuratorates in Shanghai in 2019. Moreover, the trend and features of such crime are studied and judged, and the countermeasures and suggestions are offered. Meanwhile, Shanghai People’s Procuratorate also published typical cases of the IPR crime in 2019, providing more professional, more standardized, and more powerful judicial safeguard to optimize the business environment through the rule of law and to create the innovative and entrepreneurial atmosphere.
I. The IPR criminal cases in Shanghai
(I) Basic situation of cases
The procuratorates in Shanghai took cognizance of 922 IPR criminal cases involving 2,092 persons in 2019. Upon examination, 959 persons were under arrest in 443 cases and 1,133 person were prosecuted in 479 cases.
1. An increase in new-type, hard, and complicated cases. New-type, hard and complicated cases handled by the procuratorates in shanghai in terms of the determination of complex and technical facts
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and that of the application of law kept emerging, e.g. the first-ever case of infringement upon the copyright by means of the WeChat plug-in software as well as those of infringement upon the IPR with the help of new technology including the deep linking and the parser tool.
2. Comparatively greater proportion of cases of counterfeiting the registered trademarks. In terms of the case type, trademark-related cases accounted for comparatively greater proportion in the caseload1 of a range of infringement upon the IPR in Shanghai, i.e. 90.13%, including 245 cases of counterfeiting the registered trademarks with 648 perpetrators and 35 cases of illegal manufacture of registered trademark logos and sales thereof with 87 perpetrators. Moreover, there were also 17 cases of infringement upon the business secret with 28 perpetrators, 66 cases of infringement upon the copyright with 192 perpetrators, and eight cases of selling pirated goods with nine perpetrators. There was no case of counterfeiting patents in the whole year.
3. Highlight of the leading pre-examination role and further strengthening of the function of legal supervision. The procuratorates in Shanghai insisted on intervention in advance in hard and complicated IPR criminal cases of significant influence and new
1 The caseload means sum of the number of arrest cases and that of the prosecuted case upon examination.
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type to proactively guide the investigation and effectively fight the crime, e.g. the timely intervention in a “zero-confession” case of infringement upon the business secret, resulting in detailed suggestions on investigation regarding the source of the related technical information, the security measure, the whole course of disclosure, the obligation of confidentiality, and the damage so that a complete evidence system could take form and the guilty company and its persons-in-charge could be correctly and timely prosecuted.
4. Strengthening of the application of the plea agreement and a significant increase in the proportion of the compensated right holders. The proportion of the number of IPR cases where the plea agreement system was applied reached 41.66%, up 31% over the previous year. Thanks to strengthening of the application of the plea agreement system and promotion of the proportion of compensated IPR holders, altogether 87 defendants took the initiative to return nearly RMB 200 million at the stage of examination for arrest, an increase of 32.8 times over the previous year. The compensated holders were not limited to the cases of copyright and business secret in that there was also a significant increase in the number of the compensated cases involving trademarks and the amount of indemnity.
5. A significant rise in the fine and successful measures of non-
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criminal penalty. Both the rate of application of the fine and the amount of the fine rose significantly. All the effective judgments in 2019 were guilty verdicts in which the sentence of minimum three-year (exclusive of three years) fixed-term imprisonment accounted for 8.91% and the rate of application of the fine reached 95.54%. The average amount of the fine was RMB 181,000, up 91.5% in comparison with the previous year. Cases where injunctions were sentenced or occupation prohibition was ordered have emerged. For instance, in the event that a defendant has been operating a number of video websites over a long period of time where he/she has infringed the copyright by means of the parser technology, he/she would be prohibited from operation of the video websites during his/her probation period for five years. In that case, the punishment has been increased for the purpose of relapse prevention.
(II) Features of the cases
1. A continuous increase in professional intellectualization of the modus operandi. In the cases of manufacture and sales of counterfeits, the degree of simulation gradually improved. Furthermore, the tort goods and their logos were separated at the time of shipment, leading to more difficulty in investigation. Moreover, the perpetrators of infringement upon the copyright normally adopted secondary changes, design or iterative development against the
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original works, or registered the copyright of the infringed goods, which was more disguised and confusing. In addition, there was a significant web-based trend in that the perpetrators frequently adopted professional and technical tool and methods including deep linking, video oculographic, transcoding, and crawler.
2. Pe*******on into all sectors in terms of the domain of the cases. In the case of infringement upon trademarks, the domain ranged from the prevailing cigarette, liquor and luxury brands to a variety of household and industrial products including daily chemical products, electronic products, hardware and building materials, auto spare parts, and industrial raw materials. More and more commodities with low prices but high profits and in huge demand were also counterfeited. Furthermore, the object of infringed copyright extended from the traditional books and works of art to film and television works, online books, and collective works, gradually covering a range of copyrights listed in the Copyright Law. There was also a trend in continuous occurrence of tort cases involving pirating video websites, accounting for one third of the copyright infringement cases. In addition, infringement upon the business secret was not limited to technical secret; instead, it extended to the operation information which might bring competitive advantages on the market to the holders.
3. Elaborate and scale criminal organization structure. Whereas
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the traditional street-vendor-type operations were on gradual decrease, perpetrators developed corporation operation in terms of the crime pattern. Division of labor in the links of tort was also elaborate. Moreover, companies took advantage of the operational model for enterprises to perpetrate tort faster and on a larger scale. The spread of the crime turned out to be broader and its consequence graver, which increased the difficulty in supervision and investigation.
4. Significant achievements and results in fighting the upstream crime. Both the police and the procuratorate continuously strengthened control of the source of the IPR crime, putting more efforts to fight the upstream crime. A batch of industrial chains of manufacture and sales of counterfeits as well as those of piracy were demolished. A number of cases where the value reached tens of millions of or even hundreds of millions of yuan emerged. In terms of the trademark-related crime, there were 245 cases of counterfeiting trademarks, the upstream manufacture of counterfeits, in 2019, the proportion of which rose to 24.2%.
II. An analysis of features of various IPR crimes
(I) Crime of infringement upon the trademark
Firstly, the new criminal pattern of “selling goods through online broadcasting” and that of “selling counterfeits in the name of repair” took form. With emergence of new commercial activities
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including the online broadcasting, quick repair of mobile phones, and overseas shopping representatives, sales of counterfeits gradually extended from channels of the traditional small shops and online stores to social and entertainment platforms including the WeChat official accounts, shopping representatives through moments, and live broadcasting. Some perpetrators also sold goods with counterfeit registered trademarks through official channels including exhibitions and promotion events organized by shopping malls which were highly accepted by the public. Secondly, hotel employees trafficked in packing materials. Employees of hotels and clubs trafficked in packing materials without authorization including wine bottles, bottle caps and packing boxes to perpetrators. After such recycling, the latter filled the bottles with low-end liquor to counterfeit high-end brands. Thirdly, tort against “old brands” drew more attention. In recent years, the procuratorates in Shanghai handled cases regarding infringement upon trademarks of “old brands” involving food, drug, daily and industrial supplies, including the well-known indigenous “Yutang” white granulated sugar.
(II) Crime of infringement upon the copyright
Firstly, new-type Internet crimes such as “deep linking” were quite damaging. Such hard cases accounted for nearly one third of the cases of infringement upon the copyright examined for
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prosecution. They became one of the major behavior patterns of infringement upon the copy right on the Internet. It was mainly the piracy websites that set up the deep linking, creating the effect of gathering and scale spread of scattered piracy recourses. Perpetrators usually posted gambling and promotion advertisements on the Internet to compromise copyright protection and network order. Secondly, traditional cases of infringement upon the copyright of books and works of art became more complicated. For instance, perpetrators applied for registration of trademark or design patent of the works of art created by other people and sold the products whose exterior packing contained the said trademark logo during the period of such application. Once they were caught, they defended the foregoing tort on the ground of the registration of trademark or design patent. Thirdly, new types of cases such as infringement upon collective works emerged. The key to protection of the collective works under the Criminal Law lies in whether such works are original. For instance, a procuratorate in Shanghai handled the first ever tort case where the question bank of an online training platform was infringed in China. It accords with the trend of overall and tight criminal protection of the IPR to include the collective works featuring original selection and arrangement.
(III) The crime of infringement upon the business secret
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Firstly, case exposure focused in certain sectors. The cases of infringement upon the business secret handled by the procuratorates in Shanghai were mainly in the information technology, machine manufacture, silicon crystal research and development, and the service consultation sectors. The information technology and machine manufacture sectors accounted for more than 80%. The content of the infringed business secret concentrated on the technical information including mechanical drawings and software codes. Secondly, tort was mainly perpetrated by employees. Some of them were directly responsible for research and development, or management of the business secret, and some took advantage of their job by accessing and stealing the business secret. In addition, they illegally disclosed or used the business secret by means of internal and external collusion, or establishment of another company, or resignation.
III. Achievements and results of the IPR protection by procuratorates in Shanghai in 2019
2019 saw firm establishment of the concept of “IPR protection equals innovation protection” by procuratorates in Shanghai by means of organic combination of severe punishment against the IPR crime and strengthening of rights and interests protection to continuously deepen and innovate the procuratorial working mechanism of the IPR protection.
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1. Specifying the standard for IPR law enforcement. The Municipal Procuratorate made an empirical research on the measurement of penalty in the IPR criminal cases in Shanghai in the past five years to summarize together with Shanghai High People’s Court the findings so as to launch the first standard for the measurement of penalty in the IPR criminal cases in the country. Moreover, the application of law and the standard for exhibit specification in copyright cases was strengthened and perfected. Proceeding from the “deep linking” behavior, the guide for handling cases of infringement upon the copy right in this category was formulated.
2. Establishment and perfection of the system of the joint meeting of procurators. The joint meeting of the IPR procurators in Shanghai was established, and its specific procedures were standardized. Hard cases submitted by procuratorates at all levels were discussed and studied at the said joint meetings for the purpose of feasible intellectual support for case handling at the frontline. A professional case handling team consisting of cross-district procurators in Shanghai was set up for the purpose of intervention in advance and participation in hard, complicated and new-type IPR criminal cases by the team members.
3. Exploration of substantive participation in the criminal
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proceedings by the right holders. Based on the pioneer system of notifying the victims (corporate victims) in the IPR criminal cases of their litigation rights and obligations, we further promoted substantive participation in the criminal proceedings by the right holders. On one hand, we provided the right holders with room for full claim for their rights and interests by means of their participation in public hearings on examination for arrest, pre-trial conferences, and the court hearings. On the other hand, we explored the mechanism of reasonable compensation for the right holders by the tort perpetrators during the stage of examination for prosecution. There was success in the said compensation in a number of cases. Pudong New Area People’s Procuratorate, with a view to deepening linking up between the administrative law enforcement and the criminal justice in the IPR area, executed the Agreement on Cooperation in Pre-prosecution Mediation of IPR Infringement Cases with the Intellectual Property Bureau to promote the trial mechanism in this regard to effectively safeguard the rights and interests of the IPR holders in time.
4. Strengthening publicity on the rule of law based on media including the white paper. We promoted the publicity on the IPR in terms of the rule by law by means of releasing the white papers and drafting the guide on legal risks of the IPR to strengthen awareness and capability of technical start-up enterprise regarding prevention
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and solution of the legal risks as well as to create a sound social atmosphere for IPR protection.
5. Provision of proactive and tailor-made service for industrial development. We deepened the application of the unified platform of Shanghai procuratorates’ service for safeguarding construction of the science and technology start-up center so that channels for IPR holders to make complaints, whistleblow, and check the progress of case handling could become unimpeded and the online service featuring convenience without delay, efficiency and high quality could be provided. Furthermore, the procuratorial service channel platform was extended. Judicial service stations and IPR procurator’s teams were established in major science and technology start-up parks such as Pudong New Area Free Trade Zone and High-Tech Zone, Yangpu District Changyang Campus, Fengxian District Dongfang Meigu Bio-Tech Park, and Songjiang District G60 Science and Technology Start-up Corridor to sink the procuratorial strength and provide enterprises therein with face-to-face service.
6. Establishment of the IPR protection research center. The municipal procuratorate set up Shanghai Procuratorial IPR Protection Research Center at the Third Branch of Shanghai People’s Procuratorate. The foregoing center, combining four major functions, i.e. case handling, theoretical research, talent training, and publicity
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and service, is the first-ever IPR comprehensive practice and research base for procuratorates at the provincial level in China.
IV. Countermeasures and suggestions
(I) Strengthen the right relief and perfect the working mechanism of strict protection of the criminal right
Firstly, perfect the mechanism of reasonable compensation for the right holders. We shall proactively explore pre-prosecution mediation to guide and promote reasonable compensation for the right holders by the tort perpetrators by application of the plea agreement system. The strength shall be put on loss recovery and the “restitutio in integrum” of the right. In addition, proactive compensation for the right holder will be the comprehensive factor in measurement of penalty to display the judicial concept of restitution and to enhance pacification and restoration of the social relations. Secondly, promote the “three-in-one”, i.e. civil, administrative, and criminal case handling. The Third Branch of Shanghai People’s Procuratorate will, as the first procuratorate establishing the said case handling mechanism at the branch level in China, further give play to its professionalism and draw on some basic theories and concepts of the civil law so that they can be put to use in handling the criminal cases.
(II) Strengthen “linking up between the administrative law enforcement and the criminal justice” to build the collaboration
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pattern of the grand IPR protection
Firstly, perfect the collaboration mechanism of case investigation and handling. We shall continuously strengthen communication between the administrative authorities for law enforcement and the police, the procuratorate, and the court to perfect the mechanism of briefing about the case information so that the law enforcement and judicial authorities can have access to the case information and intervene in advance to ensure timeliness and completeness of evidence fixing. The case transfer procedure, that of inspection and evaluation, and that of procuratorial supervision shall be specified by means of countersignature of normative documents. Secondly, jointly implement special administration in related areas. We shall implement the special criminal protection of the business secret, identity the mechanism of multi-department transfer of the special tort clues, and jointly carry out publicity on the rule of law. Furthermore, the criteria for the evidence in business secret crime shall be unified for the purpose of joint promotion of the special administration to fight such crime. In addition, the special IPR program on the “old brands” in Shanghai shall be implemented to perfect the system of case briefing. Procutatorial service of higher quality shall be given to the indigenous brand enterprises. Thirdly, jointly promote study and judgment of tort as well as talent training. Various authorities
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shall, based on the information platform for law enforcement and case handling, strengthen data circulation as well as analysis, study, and judgment, and establish the expert database for consultation to jointly study and solve issues and difficulties in terms of evidence collection, inspection, evaluation, and application of law in IPR cases. Moreover, we shall jointly formulate the training plan for communication between the administrative and criminal authorities in terms of the IPR, share the training resources, and build the echelon of professional IPR law enforcement and judicial talents.
(III) Strengthen joint administration and share to create the social atmosphere of diversified supervision and protection
Firstly, explore establishment of the system of the “black list” of torn perpetrators. We shall, on the basis of the disclosure system of procuratorial work, strengthen collaboration with the administrative and judicial authorities including the IP Bureau, the police, the court, and the Justice Bureau to explore establishment of the system of disclosure of the IPR law breaking and criminal information and to reinforce the diversified supervision against the tort perpetrators with criminal records. Meanwhile, we shall collect the foregoing information and make a “black list” of perpetrators on a regular basis so that we can disclose it to the related sector and industry associations in time. Secondly, strengthen publicity on crime prevention. A
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number of departments shall jointly release the guide on tort prevention and typical IPR cases to guide the right holders to enhance self-protection awareness and take preventive measures. In addition, we shall follow the trend of the times by innovating and exploring more popular methods like online broadcasting to interpret the law based on specific cases and to achieve the result of “educating the public at the completion of a case”. Thirdly, reinforce self-regulation by industry associations. Industrial development shall be further standardized to prevent and restrain IPR law breaking and crime, e.g. IPR-related sectors including the server lease and management, the advertising alliance, hotels and clubs. Moreover, the mechanism for information communication about IPR protection shall be explored to promote and strengthen self-discipline and self-regulation by industry and chambers of commerce.

05/04/2020

法律评论：深圳立法禁食宠物的里程碑意义

William’s Legal Review: A Ban on Pet Eating in Shenzhen is A Milestone for Animal Protection Legislation in China

2020年3月31日，深圳市第六届人民代表大会常务委员会第四十次会议通过了《深圳经济特区全面禁止食用野生动物条例》，将于5月1日起施行。条例第二条第二款规定：“禁止食用用于科学实验、公众展示、宠物饲养等非食用性利用的动物及其制品。”
On March 31, 2020, the 40th session of the standing committee of the sixth Shenzhen municipal people's congress adopted the Regulations on a Total Ban on Eating Wild Animals in the Shenzhen Special Economic Zone, which will take effect on May 1. Article 2, paragraph 2, of the Regulation, states: "it is prohibited to eat animals and their products used for non-edible purposes such as scientific experiments, public display or companionship."
今天早上看到这条消息，令我感到是时候来谈一谈中国动物保护立法的意义了。看到这条消息让我首先联想到的就是颁布于1950年1月13日的香港的《猫狗规则》，其中第22条规定：
Reading this news in the morning made me think it is time to talk about the significant meaning to have Animal Protection Law in China. The first thing I thought about when reading the news, was the Dogs and Cats Regulations, which was enacted on January 13, 1950, in Hong Kong. Rule 22 of this Regulation states:
(1) 任何人不得屠宰任何狗只或猫只以作食物之用，不论其是否供人食用。
(2) 任何人不得售卖或使用或允许他人售卖或使用狗肉及猫肉作食物。
(3) 任何人被发现管有任何狗只或猫只的屠体或该等屠体的任何部分，且其情况合理地令人相信该狗只或猫只是在本条的规定被触犯的情况下正在或经已被屠宰或售卖或使用作食物，即属犯了第(1)或(2)款(视属何情况而定)所订的罪行，除非他能够使裁判官信纳他事实上并没有触犯第(1)或(2)款(视属何情况而定)的规定。”
(1) No person shall slaughter any dog or cat for use as food whether for mankind or otherwise.
(2) No person shall sell or use or permit the sale or use of the flesh of dogs and cats for food.
(3) Any person who is found in possession of the carcass of any dog or cat or any part thereof in such circumstances as would reasonably give rise to a belief that such dog or cat was being or had been slaughtered or sold or used for food in breach of this regulation shall be guilty of an offence against paragraph (1) or (2), as the case may be, unless he is able to satisfy a magistrate that he has not in fact committed any breach of paragraph (1) or (2), as the case may be.
立法保护动物，而不仅仅是野生动物，是世界各国的普遍做法。中国的香港、澳门和台湾也早已立法保护动物。在这方面，中国大陆一直是落后的。现在中国大陆终于突破了野生动物的范畴，开始立法保护宠物，不得不说具有重大的历史意义。
It is common in lots of countries in the world to establish laws to protect not only wild animals but the animals in general. In that sense, mainland China has been falling behind. Now, it finally has gone beyond the scope of wild animals and has a regulation to protect companion animals in mainland China. I believe the historical meaning of this regulation is significant.
对动物，尤其是猫、狗等被人类普遍饲养的宠物，是否能得到法律的保护所导致的社会影响不只是某些风俗习惯能否得以存续的问题，不只是某些餐饮行业及其上下游产业的经济效益问题。更重要的是，当动物权益遭受伤害却得不到法律救济的时候，它们的主人或其他爱心人士就只能通过自己的私人力量寻求救济，继而引发一系列的社会矛盾，产生很多负面的社会影响。
Whether animals, especially companion animals like cats and dogs, can be protected by law, does not only affect whether some kinds of culture can continue to exist, or the survival of some food industry. More importantly, when animals’ rights get hurt and there is nowhere to seek legal relief, their owners or other concerning people would have no choice but to take justice into their own hands. Consequently, a stream of social contradictions would be inevitable and lead to negative social impacts.
2011年4月15日轰动一时的高速救狗事件，不仅救狗的过程历尽艰辛、费尽周折，而且最后的结果还吃力不讨好。狗贩子运狗至少在表面上是合法的，为了保护狗贩子合法的经济利益，首先就需要赔偿狗贩子的经济损失才能把狗救下。救下狗之后发现很多狗戴有项圈，显然是别人饲养的宠物。但狗贩子盗窃狗只的罪行并没有得到追究。相反，组织救狗的中国小动物保护协会最后被十家宠物医院告上法庭，索赔五十余万元作为用于救治五百只受伤狗只的医疗费用，最后被判决赔偿四十余万元。（见北京市第一中级法院作出的（2013）一中民终字第10564号民事判决书）。
On April 15, 2011, the sensational highway dog rescue incident, not only the process of saving the dogs went through a lot of difficulties, but also the result is sad. At least on the surface, it is legal for the dog dealers to transfer the dogs. Therefore, in order to save the dogs, you have to compensate for the economic losses of the dog dealers. After rescuing the dogs, it was found that many of them were wearing collars and were apparently other people's pets. But the dog dealers were not prosecuted for the theft. Instead, the China Small Animals Protection Association, which organized the rescue, was sued by ten pet hospitals for the amount exceeding 500,000 CNY in compensation for treating 500 injured dogs. The court partially supported the claims and granted over 400,000 CNY to compensate for the damages. See (2013) Yi Zhong Ming Zhong Zi No. 10564 Civil Judgment, Beijing First Intermediate Court.
没有买卖就没有伤害。为什么在中国大陆救猫、救狗事件屡有发生？因为一直没有法律保护猫、狗的权益不受侵害。如果法律禁止食用猫、狗，那么就不会有那么多人为了经济利益去盗窃或贩卖猫、狗，也就不会产生那么多的社会矛盾。
Where there is no trade, there is no harm. Why saving cats and dogs incidents happened in mainland China all the time? Because there has been no law to protect the rights of cats and dogs from being harmed. If the law prohibits eating cats and dogs, there would be fewer people stealing or selling cats and dogs for economic gain, and there would be fewer social conflicts.
2014年5月29日，上海浦东发生了一起狗主人卞某某打死偷狗贼沙井瑞的刑事案件。“经审理查明：2014年5月29日4时许，被告人卞某某在本区泥城镇人民村###号暂住处，因发现沙井瑞毒杀其自家狗并欲装上摩托车逃离现场，遂追赶上前并与其发生肢体冲突，期间被告人卞某某用手臂猛勒住沙井瑞颈部直至其不能动弹。被告人卞某某随即向公安机关报警并拨打了急救电话，急救人员至现场后确认沙井瑞已当场死亡。经鉴定，被害人沙井瑞系被他人用钝性外力作用颈部造成机械性窒息致呼吸循环系统功能衰竭而死亡。”狗主人最后被判故意伤害罪，被判处有期徒刑三年，缓刑三年（见上海市浦东新区人民法院作出的（2014）浦刑初字第5216号刑事判决书）。
On May 29, 2014, a criminal case occurred in Pudong, Shanghai, in which a dog owner, Mr. Bian, killed a dog thief SHA Jingrui. “The court finds that: on May 29, 2014, around 4 PM, in the People’s Village of Ni Town, where the defendant Bian lives, the defendant witnessed SHA Jingrui poisoned and killed his dog and was about to mount it onto a motorcycle and fled the scene. Consequently, the defendant caught Sha and had a physical confrontation with him. During the process, the defendant bridled Sha’s neck with his arms until Sha can no longer move. The defendant immediately called the police and called for an ambulance. The emergency personnel later confirmed that SHA Jingrui was killed on spot. According to the autopsy report, the victim was killed by mechanical asphyxiation of the neck caused by a blunt external force.” The dog owner was found guilty of battery and sentenced to three years in prison, with three years' probation. See (2014) Pu Xin Chu Zi No. 5216 Criminal Judgment, Pudong New District People's Court, Shanghai.
类似的狗主人打死偷狗贼的刑事案件还有很多。如果有法律可以充分、恰当的保护这些狗的权益，那么这些狗的主人在面对这样的情况时或许就不会再采取这样极端的手段。
There are many other similar criminal cases of dog owners killing dog thieves. If laws were in place to adequately and properly protect the rights of these dogs, their owners might not resort to such extreme measures in such situations.
立法禁止食用宠物是一个非常好的开始，相信深圳市的很多社会矛盾将因此法的颁行而得以避免发生。但仅仅立法禁食宠物是远远不够的，中国保护动物的立法进程还有很长的路要走。
A ban on pet eating is a good start, I believe that many social problems in Shenzhen's will be avoided because of it. However, only banning pets eating is not enough. China still has a long way to go.
2018年3月，“摔猫的张姓男子，在南京打工，为了泡公司前台买了小美短送人家，女方拒绝，然后去宠物店退猫，被宠物店拒绝后就狠摔幼猫，小猫当场死亡。” 1. 该张姓男子至今没有为此承担任何法律后果。
March 2018, “a man surnamed Zhang worked in Nanjing. One day he bought a cat to please a woman who worked at the reception desk of a company. The woman refused his gift. The man wants to return the cat to the store. The store refused to refund him. He threw the cat to the ground and killed it.” 1. Mr. Zhang has never been sued or borne any legal responsibilities.
2014年1月22日，一位名叫Farid G的法国人在Facebook上发布了两段影片。影片中可以看到他将一只小猫扔向某建筑物，使其摔在了该建筑物两楼的地板上。随后Farid将小猫丢弃在附近的灌木丛中。万幸小猫并没有死，而Farid为此被判处一年有期徒刑。2.
On January 22, 2014, a Frenchman named Farid G posted two videos on Facebook. In the film, he threw a kitten at a building, causing it to fall to the second floor of the building. Farid then dumped the kittens in nearby bushes. Luckily the kitten did not die, and Farid was sentenced to one year in prison.2.
中国摔猫的人把猫摔死了也没有承担任何法律后果，法国摔猫的人没把猫摔死，即被判有罪、获刑一年。两相比较，可见两国动物保护力度相差之悬殊。
A person in China who throws a cat to death has not suffered any legal consequences, while another person in France who throws a cat without killing it was found guilty and sentenced to one year in prison. Comparing the two, you can see the huge difference in animal protection between the two nations.
1935年11月29日香港就已颁布《防止残酷对待动物条例》，条例规制的是对待动物的行为不能使其“承受不必要或原可避免的痛苦”。1950年颁布的《猫狗规则》规制的是的“不得屠宰任何狗只或猫只以作食物之用”。可以说《猫狗规则》是在《防止残酷对待动物条例》基础上的进步。
On November 29, 1935, Hong Kong promulgated the Prevention of Cruelty to Animals Ordinance, which regulated that the treatment of animals should not cause them "needless or avoidable suffering". The Dogs and Cats Regulations of 1950 are more focused on "[n]o person shall slaughter any dog or cat for use as food…" In some sense, that the Dogs and Cats Regulations is progress based on the Prevention of Cruelty to Animals Ordinance.
有趣的是，正如《深圳经济特区全面禁止食用野生动物条例》的立法背景是尚未结束的新型冠状病毒疫情，无独有偶，《猫狗规则》的立法背景是为了防控当时的狂犬病疫情。
Interestingly, just like the legislative background of the Regulations on a Total Ban on Eating Wild Animals in the Shenzhen Special Economic Zone was the ongoing coronavirus outbreak, the legislative background of the Dogs and Cats Regulations was to prevent and control the rabies epidemic at that time.
社会在发展、在进步，法律的发展和进步也有其特有的规律。仅仅立法禁止食用宠物当然是远远不够的，必须有更严格的法律规定、更严重的法律后果方能真正的保护动物。正如香港的《猫狗规则》是在《防止残酷对待动物条例》基础上的进步，希望《深圳经济特区全面禁止食用野生动物条例》也可以是中国大陆立法保护动物的开始。
Human society is developing, correspondingly, and at its own pace, the law is also developing. It is certainly not enough to only legislate against the consumption of pets. There must be stricter laws and more serious legal consequences to truly protect animals. Just like Hong Kong's Dogs and Cats Regulations is a step forward from the Prevention of Cruelty to Animals Ordinance, I hope that the Regulations on a Total Ban on Eating Wild Animals in the Shenzhen Special Economic Zone could also be the beginning of legislation to protect animals in mainland China.

作者：马昊宇律师
上海兰迪律师事务所律师
美国芝加哥肯特法学院庭审辩护专业硕士
2020年4月3日

William Haoyu Ma
Attorney at law, Shanghai Landing Law Offices
LL.M in Trial Advocacy, Chicago-Kent College of Law
April 3, 2020

it finally has gone beyond the scope of wild animals and has a regulation to protect companion animals in mainland China