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I Backgrounds:

On September 16, 2005, Li Gang, a Doctor, purchased several “Le Tian” xylitol gums on which there are marks certificated by “National Committee for Oral Health” in the marketplace operated by Beijing “Jia He Wu Mei” Business Limited Comapany.

 

On September 26, 2005, Chao Yang People’s Court refused to accept the case in which Li Gang was against Le tian Company, Jia He Wu Mei Company and Health Ministry, for court thought the Health Ministry should be regarded as party in the civil lawsuit.

 

On September 26, 2005, the original defendant “Health Ministry” was changed into “National Committee for Oral Health” , and finally this case was accepted in the West City People’s Court.

 

On November 22, 2005, the West City People’s Court judged that this case should be transferred to Chao Yang People’s Court.

 

On February 16, 2006, Chao Yang Court announced that this case would be tried on February 23. Li Gang submitted the application for adding Health Ministry to the defendants.

 

On July 14, 2006, Chao Yang People’s Court tried this case.

 

Court’s opinion: According to the Chinese laws relating to this case, the civil cases that court may accept are those concerning disputes among civilians, legal persons, and other organizations as a equal party on property relationship and body relationship. Through the investigations, “National National Committee for Oral Health” is a specialist-consulting organization operated by Health Ministry and have not qualification for independently assuming liabilities. The legal consequence caused by the civil activities of “National Committee for Oral Health”should be attributed to Health Ministry that established and supervised it. However, in this case, Le Tian Company consigned “National Committee for Oral Health” to certificate the quality of “Le Tian” gums, and then Le Tian Company accepted “the certificated mark” and began to sell the gums with certificated mark to consumers. Because the above things are all done by Le Tian Company, there does not exist a direct relation concerning civil rights and obligations between National National Committee for Oral Health and Li Gang. Li Gang, as a consumer of Le Tian gums, could not bring a lawsuit against National Committee for Oral Health for the reasons that his civil rights were invaded. As to the claims of Li Gang on the illegal certifications of National Committee for Oral Health, and on the failure of fulfilling the supervision obligation by Health Ministry, they are included in the administrative supervision categories, and therefore, it won’t be accepted. If plaintiff has any objections, he can appeal to the other remedy methods.

 

Judge refused the lawsuit that Li Gang was against Health Ministry of the People’s Republic of China in the court.

 

II Agenda:

1,To analyze the responsibilities of common invasion of civil rights

2,To discuss the procedural problems in this case

A. Whether it is legal that after court agreed to add the defendant and tried the case, court overruled the lawsuit that added the defendant again?

B. Whether it is legal that court accounted the time for the appeal of judgment by the time of the oral judgment?

 

III DateJuly 31, 2006

PlaceBeijing Impact Firm

 

IV Attendees

Yang li xinProfessor, China People’s University

Fu yu linVice-Professor, Peking University

Li XuanVice-President, Law School of Central University of Finance and Economics

Zhang si zhiFamous Lawyer

Mo shao pingPresident, Beijing Mo Shao Ping Firm

Xia LinPresident, Beijing Impact Firm

Jiang wu siPresident, Beijing Chang Ming Firm

Liu feng yuLawyer, Beijing Zhong Wen Firm

Hao jin songCommonweal Lawyer

Li GangChief Editor, Commonweal Litigation Net, Plaintiff of the case “National Committee for Oral Health”

Li JuanLawyer, Beijing Impact Firm; Agent of plaintiff

Yu yong huaLawyer, Beijing Impact Firm; Agent of plaintiff

 

Holder

Wu GePresident, Special Committee on Constitution and Human Right of All Chinese Lawyers Association

 

V Contents

Li Gang: introduction of the facts of the case

He introduced the facts of the case.

 

Li Juan: introduction of the litigation of the case

She introduced the litigation of the case including the plaintiff’s claims, the exchange of evidence and answers of defendants.

Li Xuan: the judgment deals with the factual parts of the case.

This case is characterized as the civil dispute. Health Ministry, as defendant, is feasible. The judgment that overruled the lawsuit against Health Ministry, in fact, is a factual judgment concerning the procedure; and there does exist a beneficial relationship between the “National Committee for Oral Health” and this case.

 

Yang li xin: He advised that the case might be put in the invasion of the knowing rights of consumers.

There does exist some defects in the claims of plaintiff. The 49 item of the Consumer Law is about the contract, not the invasion of rights. He advised that the case might be put in the invasion of the knowing rights of consumers. As to the litigation of the knowing rights, Health Ministry may be regarded as defendant.

 

Liu feng yu: the choice of the ways of litigation.

Firstly, the premise is to clarify the legal character of the “certification”. From the commonweal litigation, putting administrative litigation is preferred. He advised that plaintiff might bring forward a application to “Certification Supervision and Management Committee” for certificating the qualification of “National Committee for Oral Health”. If the certification made by the “National Committee for Oral Health” is illegal, plaintiff could ask for the punishment on it.

 

Fu yu lin: the activity of adding the defendant and overruling the judgment is illegal.

After court agreed to add the defendant, the practice that court overrules the lawsuit of adding defendant in some phase of procedure, is not illegal. For the parties, the practice might be a good thing.

 

VI Social Impact

The result of searching the topic of this meeting by “google” is 153 items.

 

1,Important Report

China Youth Daily”, August 3, 2006: How difficult it is to put a lawsuit against “National Committee for Oral Health”----Law Doctor’s exploring the path for the protection of the rights of consumers.

The result of searching the topic of this meeting by “google” is 266,000 items.

 

2,Important Answers

Judicial Proposal Letter: the result of searching “National Committee for Oral Health, Proposal Letter” by “google” on Internet is 1,440 items

 

Answer of Certification and Supervision Committee: the result of searching “Certification and supervision Committee, Health Ministry, Stop, National Committee for Oral Health” by “google” on Internet is 1,550 items.

 

3,Other reports and comments

Beijing Daily”, August 1, 2006: National Department may take the position of defendant

Beijing Morning” ,August 1, 2006: Law Doctor appealing for specialists and insisting in the lawsuit against “National National Committee for Oral Health”

 

4,Net Live:ChinaBlog

http://chat8.bokee.com/chat/html/20060731202123/index.shtml

 
   
 

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