Research On My Country's Intellectual Property Case Guidance System

The case guidance system of intellectual property is an important institutional innovation carried out by the Supreme People's Court in the process of the latest judicial reform.It is also a practical exploration of China's case guidance system in the field of intellectual property trial,through which to improve the quality of intellectual property trial and to better serve the strategy of innovation-driven development and the national intellectual property strategy.As an important part of the case guidance system of China,the emergence of the case guidance system of intellectual property has its historical inevitability and practical necessity.However,since this system has ran just for only three years and has been implemented in the field of intellectual property trial,it has not aroused full attention of all walks of life.In February 2018,the office of the Central Committee of the Communist Party of China and the office of the State Council jointly issued “Opinions on Several Issues Concerning the Strengthening of Reform and Innovation in the field of Intellectual Property Rights Trial” which clearly stated "improving the case guidance system of intellectual property rights".Based on this,whether summarizing the existing experience or designing the next step of development,a full understanding of the case guidance system of intellectual property rights including the practical level and the law level is necessary,which is the lack of existing academic research and practical exploration.Starting with the fundermental problem of judicial law and taking the judicial case operation mechanism as the research perspective,this paper selects the UK and the US as the representatives of the Anglo American law system,selects Germany and Japan as the representatives of the continental law system,to make a horizontal comparative research on the judicial system and the operating mechanism of judicial cases of the abovementioned countries.On the basis of these comparison,this paper furher focuses on the field of intellectual property trial as well as investigates the establishment of their specialized trial systems of intellectual property in the abovementioned countries,by which taking the development of the "equivalent theory" as a research sample,to present the judicial systems and the operating mechanisms of judicial cases in various countries.Then,taking the time as the axis,taking the general legal pattern in specific period as the standard,to investigate the judicial systems and case operation mechanisms in various stages of Chinese history.On the basis of the abovementioned comparative studies,it is found that under the judicial system of court levels,the effectiveness of judicial adjudication,especially from the superior court,is often not limited to the validity of the case itself.On the contrary,it usually has a certain degree of restraint which makes the following same or similar cases follow the precedent,thus forming a dynamic case operation mechanism transcending case itself in the real judicial activities.Although the mechanism will be influenced by some subjective factors,in general,it is still common in many countries and in different periods with many similarities.That is why "stare decisis" could transcend the legal system and space-time boundaries,in an obvious or hidden way,frequently occur in various countries,China is no exception.Besides,under these commonalities,every country will be influenced by its history,culture,economy,society etc.,and develop its own personality.As an example,the current judicial system of China is originated from the period of the Shanxi-Gansu-Ningxia Border Region government,and has formed unique Chinese characteristics after wartime,the planned economy period and the period of reform and opening to the outside world.With the combination of the universal "stare decisis",the said Chinese characteristics has eventually formed a more diversified case guidance system.The case guidance system is the product of history and time.Its Chinese characteristics are mainly embodied in the establishment and implementation by the Supreme People's Court "from top to bottom",and its strong desire to strengthen guidance and social governance through "judicial cases",which are very different from the case law system in the West.This paper fills in the blanks of the existing research and gives a detailed review and evaluation of rules of the case guidance system and the application of the Guiding Cases.At the same time,it is found that with the comprehensive promotion and implementation of the system,a series of problems begin to emerge gradually,and the bottleneck of the development of the system is emerging.There is an urgent need to make targeted adjustments and seek a substantial break through.In April 2015,the Supreme People's Court set up "Research(Beijing)base of the case guidance of intellectual property case of Supreme People's Court" in Beijing Intellectual Property Court,and chose the field of intellectual property trial to explore a deepen case guidance mechanism which aimed to establish a case guidance system of intellectual property with Chinese characteristics.The Beijing Intellectual Property Court clearly proposed that the case guidance system of intellectual property with Chinese characteristics is under the leadership of the Communist Party of China,adhering to the precondition of the main position of the statutes,taking "stare decisis" as the core,and is a kind of law applicable in China's current legal framework.This paper for the first time comprehensively summarizes the ideas and practices of the Beijing Intellectual Property Court in the process of establishing the case guidance system of intellectual property,introduces relevant measures on judicial reform and specific rules for the application of precedents in intellectual property litigations,and makes a multidimensional data analysis on the implementation of the system in 2015-2017.After a study of 1034 adjudications which cited precedents,this paper indicates three main conditions in current practice,that is to follow the precedents to ensure the unification of the adjudication,to strengthen reasoning by citing precedents,to form precedents to guide practice,and point out some noteworthy problems.In view of the above practice in the Beijing Intellectual Property Court,this paper also points out four main problems,namely,the main body of the system construction,the concept of precedent,the scope of precedent,the keynotes of adjudication,especially indicates that due to the limitation of court level and jurisdiction of the judiciary,the Beijing Intellectual Property Court has some inherent deficiencies in exploring the case guidance system of intellectual property.Based on the said comparative studies and the practice of the Beijing Intellectual Property Court,this paper finally puts forward that the case guidance system of intellectual property of China could be improved from two aspects of macro and micro aspects.At the macro level,it is necessary to realize that the development of case guidance system of intellectual property is complementary to the optimization of the system of intellectual property courts in China.Through the establishment of a national level of intellectual property appeals court,we can thoroughly break through the limitation of the court hierarchy and the jurisdiction of the judiciary that could substantively promote the construction and the implementation of the case guidance system of intellectual property.At the micro level,the good experience of practice from Beijing Intellectual Property Court should be fixed timely and researches on issues regarding the scope of prior cases,the position of keynotes of adjudications,the exception to the "stare decisis" principle,the way to handle improper citation of prior cases and so on should be strengthened.Based on this,it is possible to put forward suggestions for the revision of procedure laws,or for the enactment of a special procedural law for intellectual property which will stipulate the application of cases in intellectual property litigations and promote to form a more efficient and orderly case operation mechanism with Chinese characteristics.