The Legal System Research On Intellectual Property Rights Customs Protection

Companying with the world economy integration, Intellectual Property Rights (IPRs) protection is becoming a hot and important topic of discussion in the world trade and the border measures relating to IPR is becoming a main measure to protect IPR for its direct effects on the world trade. Since the mid of the 20th century, with the development of international trade, the number of illegal commodities concerning the tort of intellectual property has also increased and the existence of the huge number of illegal goods causes great losses to international trade. The border measures relating to IPR is gaining more and more weight in its international protection.The conception of Border contains two meanings at law, one is the national territory, and the other is the customs territory. Considered to the function of customs bureau, the border measures could only be done on the customs territory. To define the scope and subject of IPR protection, this thesis adopts IPRs Customs Protection to substitute border measures, and let it be the research object.IPRs Customs Protection is a Popular means to protect intellectual rights among countries, especially among the West. It Rrefers that the Customs has the right to stop the imports and the exports of cargoes infringing IPR according to the national law in the frontier. It develops as the international trade grows. Its status and function is more obvious especially under the circumstances of illegal trades such as Pirates and counterfeits in the international trade. So, in this realm, the legal system has gained great development. On international legislation, the third part, forth section of TRIPS Agreement makes particular prescription on the border measures. USA and European Union have both advanced ideas of IPRs Customs Protection and relatively developed experiences and exercises on legislation and enforcement.IPRs Customs Protection is the natural obligation of China after her entry into the WTO and it is also an effective way of protecting the rights of the owners of intellectual property. It elevates our power in international competition and it is also the inner need in our buildings up of customs regulations, in our deepening of our reform and in our transformation of the governmental functions. Look back the procession of 12 years, IPRs Customs Protection has developed from scratch, and from weak to strong, developed an important function in protecting the legal rights of the intelligent property rights owners, supporting normal import and export order, raising international image of China and improving domestic investment environment.But by comparison, China established the IPRs Customs Protection later and does not have a sound law system. The customs are in a great need to improve their enforcement capability. We can learn a lot from the EU IPRs Customs Protection with the combination of our national conditions.The intelligent property right is a kind of private right, because it is invisible, it is different from right in rem, and it's protection needs much help from administrative power. IPRs Customs Protection is a typical model form of administrative power. This thesis gives attention to both theories and actual practice, while theories problem is carrying on a research, it is also concerned about specific problem on IPRs Customs Protection. Through a comparison research, it may help enriching the IPRs Customs Protection theories, enhancing pertinence and validity of law enforcement by administrative authorities.First, by doing the comparative research, detects respective characteristics. Second, analyses current blemish of the IPRs Customs Protection system, perfects legislation. Third, by doing research on specific problem of the system, recommends solutionThe foreign scholar's research mostly focuses on introducing《TRIPS Agreement》, and the EU IPRs Customs Protection system; The research of local scholars generally introduces advanced experience of IPRs Customs Protection system based on《TRIPS Agreement》and other developed countries legislation. These work and articles all pose a lot of questions and counter plan, and are worth learning.But the existing research still has following problems:First, the foreign research has a foothold at the host country's legal system and《TRIPS Agreement》, involving little china's legal system;Second, the local research usually compare our system with《TRIPS Agreement》and foreign systems from macroscopic level, involving little the actual problem of the system from performance levelGenerally speaking, the research presently known on IPRs Customs Protection system pays more attention at theories level, has little on the problem of customs protice. To solve this problem, this thesis on the one hand carries on more meticulous research to the international treaty, the United States and the EU IPRs Customs Protection system, by contrasting, analysises china's IPRs Customs Protection system, on the other hand adopts the method of Positive analysis, aims at the problem in practice, by researching on true case, draws lessons from foreign experience, discusses the way of perfect our IPRs Customs Protection.The chapter 5 and 6 of this thesis emphasize on our country's actual problem occurs in performence of IPRs Customs Protection system, because a lot of problems all come from the front line customs officers, the data which can be collected is less, so the quotationnot could not be enriched furtherThis thesis includes six parts; it uses several methods, such as historical analysis, comparative analysis and analysis of positivism. It dissertates the fundamental principle of IPRs Customs Protection as an administrative Protective means; it analyzes the content and characteristic of international IPRs Customs Protection and IPRs Customs Protection in USAand the EU; it reviews the establishment and development of our IPRs Customs Protection system; makes a comparison between china and TRIPS agreement, china and the U. S. A, china and the EU with respect to legal bases, the rights and obligations, the customs'position, the scope of protection and so on; then discusses the characteristic and shortage of our IPRs Customs Protection system in both substantive and procedural aspects, and puts forwards some proposals on how to perfect our country's IPRs Customs Protection system.Chapter one begins with the general principle of intellectual property protection, dwells on the generalization of the IPRs Customs Protection it reviews the development of IPRs Customs Protection system, and studies the range, function of the IPRs Customs Protection system. The IPRs Customs Protection system is developed with the development of international trade and with the solving of the problems of the torts of intellectual property in international trade. Its range of protection includes copyright, trade marks and patents and it is gradually developed to include the designs of the chart of integrated circuits and outer designs, etc. The IPRs Customs Protection system can stop the current torts and prevent the future ones and it also provides convenience for the application of civil compensation.Charper two devoted to the theoretic basis, legal character and source of law of IPRs Customs Protection system. As an efficient method, administrative Protective means play an important role in intellectual property protection for its high efficiency and flexibility. The IPRs Customs Protection system is an important part of administrative Protective means, and has been referred by many international legislations, to some extent, it belongs to international economic law, meanwhile to a country, it also belongs to economic law as domestic law.Chapter three analyzes the IPRs Customs Protection system stipulated in TRIPS Agreement, U. S code and Council Regulation (EC). This part analyzes the content of TRIPS Agreement,《Model for National Legislation to Give the Customs Powers to Implement the Agreement on Trade Related Aspects of Intellectual Property Rights》, and USA, EU domestic law. and then discusses current legislation and practice tendency of the regulations of the IPRs Customs Protection system in international community.Chapter four dwells on our country's IPRs Customs Protection system. The three times China-America negotiation on IPRs have direct relationship on the establishment of our IPRs Customs Protection system. This part focuses on substantial law and procedural law of china's IPRs Customs Protection system, and makes analysis of positivism on our current situation.Chapter five start with substantial law, based on chapter three and chapter four, the author compares china's regulation with TRIPS Agreement, American law, EU law. then discusses the existing problems in our IPRs Customs Protection system on applicant, protective links, protective object, obligation system and minimum immunity, and raised the relevent measures for improvement.Chapter six is about procedural law of our IPRs Customs Protection system. compared with TRIPS Agreement, American law, EU law, this part points out the problems in china's regulation on protective mode, filing system, application system, assurance system, time-limit system, investigation system. and raises some recommendations to improve.Chapter four, chapter five and chapter six are the key point and creative part of this article. First, the research object of this thesis suits the inside demand that the Customs changing its function. Along with the weakening of the customs traditional revenue function, the center of gravity of customs function transfer to the new realm. No matter the international law or domestic law, our country's IPRs Customs Protection system is a topic which few people concerned. chapter four elaborates law rules and fulfilling operation of our country's IPRs Customs Protection system from substantive and procedural law. For the sake of reflecting the characteristics and the problem of our IPRs Customs Protection system better, this thesis mainly makes use of analytical method, under the premise that studied international and main flourishing nations'IPRs Customs Protection system and our IPRs Customs Protection system, the authou analyzed the problem of our country's IPRs Customs Protection system systematically and comprehensively and put forward homologous perfect measure.Secondly, this text has a foothold on the customs'practice and not on empty theories. IPRs Customs Protection is an administrative border measure, its theories contains no complicated foundation. But this system produced a lot of problems on operation levels, needed studying the realistic problem that the customs officer at front encountering and put forward suggestion at the time of doing theoretic research. During the writing of this text, the author pays attention to the opinion of front-line customs officer, and quotes many case to elucidate problem, this thesis have a certain instructive function to the fulfillment.Aim at substantive law, the writer suggests to extend the scope of applicant and the protective link in IPRs Customs Protection system; Fill up the law vacuum of parallel import; Give up the active protection of patent right, bring trade names, Geographical Indications and biodiversity into the protection scope; Get rid of antinomy in administrative responsibility system; Perfect criminal responsibility system; Aim at baggage and articles accompanying incoming passengers and personal postal articles.cancel "reasonable self-use" standard etc. Aim at procedural law, the writer suggests to establish a applicative mode which mainly depends on applicants; Adopt differently filing mode to patent right; Build up a applicative center system, prolong validity of application, lower the applicative needs; fix a reasonable quota on assurance, enlarge guarantee form; Define procedural time limits; restrict customs'investigation power; tightly control settlement of the party, etc.The introduction of foreign experience, the knowledge of our economic and legal environment and the perfection of the systems of custom protection of intellectual property should help innovate our technology, improve our foreign trade and eventually enhance our strength in technology and economy.