中华人民共和国植物新品种保护条例 REGULATIONS OF THE PEOPLES REPUBLIC OF CHINA ON THE PROTECTION OF NEW VARIETIES OF

trary to the principle of equity， the variety right owner or the assignor of the variety right shall repay the whole or part of the exploitation fee or of the assignment fee to the licensee or the assignee.

　　Article 39 Where the propagating material of the protected variety is produced

or sold for commercial purposes without the authorization of the variety right owner， the variety right owner or the party having an interest therein may， request the administrative departments of agriculture and forestry of the People's Governments above provincial level to handle it in accordance with their respective competence， or directly institute legal proceedings in the People's Court.

　　The administrative departments of agriculture and forestry of the people's Governments above provincial level may， according to their respective competence and based on the principle of free will of the parties， mediate the compensation of damages caused by the infringement. Where accord has been reached through mediation， it should be executed by the parties concerned； where no accord has been reached through mediation， the variety right owner or the party having an interest therein may institute legal proceedings in the People's Court according to civil action procedures.

　　In handling cases of variety right infringements in accordance with their respective competence， the administrative departments of agriculture and forestry of the People's Governments above provincial level may， for the purposes of safeguarding the public interests， order the in fringer to stop the infringing act， confiscate the unlawful earnings and impose a fine not exceeding five times of the unlawful earnings.

　　Article 40 Where any variety counterfeits as a protected variety， the administrative departments of agriculture and forestry of the People's Governments above county level shall order the party concerned to stop the counterfeiting act， confiscate the unlawful earnings and the propagating material of the variety， and impose a fine at least one time but not exceeding five times of the unlawful earnings； where the circumstances of the case are so serious as to constitute a crime， the party concerned shall be subjected to criminal liability in accordance with the law.

　　Article 41 The administrative departments of agriculture and forestry of the People's Governments above provincial level in handling cases concerning variety right infringements in accordance with their respective competence， and the administrative departments of agriculture and forestry of the People's Governments above county level in handling cases concerning counterfeiting protected variety in accordance with their respective competence， may， as necessary， seal up or detain the propagating material of the variety relevant to the cases， have access to， make copies of and seal up contracts， account books and other relevant documents related to the cases.

　　Article 42 Where the protected variety is sold without using its registered denomination， the administrative departments of agriculture and forestry of the People's Governments above county level shall， in accordance with their respective competence， order a correction within a specified period， and may impose a fine not exceeding 1，000 Yuan.

　　Article 43 Where disputes arises as to the right to apply for a variety right and the ownership of the variety right， the parties concerned may institute legal proceedings in the People's Court.

　　Article 44 Where any staff member of the administrative departments of agriculture and forestry of the People's Governments above county level and of other relevant departments abuses his power， neglects his duty， engages in any malpractice for private gain， or extorts or receives bribes， he shall be subjected to criminal liability in accordance with the law if he is guilty of a crime； or he shall be punished with disciplinary sanctions in accordance with the law if he is not guilty of a crime.

　　Chapter VII SUPPLEMENTARY PROVISIONS

　　Article 45 The examining and approving authorities may provide for flexible provision on the conditions of novelty for the plant genera or species first included in the list of protected plant genera a

nd species before the entry into force of these Regulations or for ones newly included in the list after the entry into force of these Regulations.

　　Article 46 These Regulations shall enter into force as from October 1， 1997

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