The Individual Analysis Method Of The Intellectual Property System And Its Judicial Application

At the beginning of the agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPS),it expressly states that the intellectual property rights are private rights.The article 94,95 and 96 of General Principles of the Civil Law of China stipulate that copyrights,patent rights and trademark rights lawfully obtained by citizens and legal persons shall be protected by law.On the basis of General Principles of the Civil Law of China,chapter 5 "civil rights" contains the intellectual property rights clause.Moreover,the article 123 not only explicitly stipulates that the parties to civil legal relations enjoy intellectual property rights in accordance with the law,but also lists eight objects of intellectual property rights in detail.It shown that international treaty and China's civil legislation clearly adhere to the private right attribute of intellectual property rights,and take trademark rights,copyrights and patent rights as the core of the intellectual property system.Despite all this,the current theoretical research on the intellectual property system in China is still insufficient.There is a lack of profound argumentation and interpretation on the private right attribute of intellectual property rights and the logic foundation of the intellectual property system.This research status is negatively influenced by the abstract concept analysis method,so the individual analysis method wants to trace to the system method.By overcoming the limitation of the abstract concept analysis method,the individual analysis method demonstrates the private right attribute of intellectual property rights and the logic foundation of the intellectual property system,which will strengthen the private right foundation of intellectual property rights,and improve the systemization degree of intellectual property rights.The codification of civil code in China is being carried out in a tense and orderly way.After General Principles of the Civil Law of China absorbs the intellectual property rights clause,Chinese intellectual property scholars except that the civil code will stipulate the volume of intellectual property rights,and even accelerate the codification of intellectual property rights by taking the opportunity of the codification of civil law.Intellectual Property Association of China compiledScholar's Proposal Draft of Intellectual Property Rights Volume of the Civil Code of the People's Republic of China.However,the national legislature clearly expressed its opposition and considered that it is difficult for the civil code to be included in the administrative management of intellectual property rights,and it is difficult to abstract the general rules of different types of intellectual property rights.The reason why intellectual property rights missed the tide of codification of civil code in China is still that the theatrical research on the intellectual property system is obviously insufficient.On the one hand,the current theoretical research on intellectual property rights in China has not fully demonstrated the private right attribute of intellectual property rights,and failed to coordinate the relationship between the private right attribute and public policy dimension of intellectual property rights.Hence the civil code is difficult to contain the administration content of intellectual property rights.On the other hand,the current theoretical research on intellectual property rights in China has not fully demonstrated the logic foundation of the intellectual property system,and lacks the basic research on intellectual property rights.Thus,it is difficult for the civil code to abstract general rules of intellectual property rights.Therefore,it is imperative to strengthen the basic theoretical research on the intellectual property system.Both the private right attribute of intellectual property rights and the logic foundation of the intellectual property system are the core issues of the theoretical research on the intellectual property system.Unfortunately,under the misguidance of the abstract concept analysis method,Chinese theoretical research on them was limited to the conceptual analysis,without the combination of the legislative analysis and the judicial application.Therefore,the individual analysis method aims at introducing the theoretical research on the intellectual property system to the broader perspective by overcoming the limitation of the abstract concept analysis method.The individual analysis method demonstrates the structure of intellectual property rights,which decides the private right attribute of intellectual property rights.Besides,it not only analyzes the types of intellectual property rights,which demonstrates the logic foundation of the intellectual property system in the legislative analysis,but also analyzes the horizons of intellectual property rights,which demonstrates the logic foundation of the intellectual property system in the judicial application.First of all,the necessary of the individual analysis method of the intellectual property system is necessary to overcoming the limitation of the abstract concept analysis method,which is based on ontology.Under the misguidance of the abstractconcept analysis method,Chinese theoretical research on them was limited to the conceptual analysis,without realizing that the individual practice plays a positive role in the research on the intellectual property system.Therefore,it is necessary to be converted from the abstract concept analysis to the individual analysis method.Secondly,the presupposition of the individual analysis method of the intellectual property system is the the individual analysis method of the civil right system.Because of the private right attribute of intellectual property rights,the research on the intellectual property system is based on the research on the civil right system,and is influenced by the abstract concept analysis method thought the civil right system.Therefore,the demonstration of the individual analysis method must be from the civil right system to the intellectual property system.And then,the basis of the individual analysis method of the intellectual property system is the structure of intellectual property rights.Because of nonmaterial objects,intellectual property rights have the unique structure,which is not independent from the structure of civil rights.Despite all that intellectual property rights exist in public policy dimension,it can't get rid of and must be depend on the structure of intellectual property rights,which decides the private right attribute of intellectual property rights.Moreover,the structure of intellectual property rights not only can be used to distinguish simply intellectual property rights and civil rights,which is the basis of demonstrating the logic foundation of the intellectual property system in the legislative analysis,but also decides its particularity in the judicial application,which is the basis of demonstrating the logic foundation of the intellectual property system in the judicial application.So,the structure of intellectual property rights provides basis for the individual analysis method's demonstrating the private right attribute of intellectual property rights and the logic foundation of their system.Next,the individual analysis method demonstrates the logic foundation of the intellectual property system in the legislative analysis by distinguishing types of intellectual property rights.Based on Husserl's meaning theory,it analyzes the natures of trademarks,works and patents,reveals the logical connection among them,and finally structures the dynamic system of intellectual property rights from the perspective of the individual practice.Finally,the individual analysis method demonstrates the logic foundation of the intellectual property system in the judicial application by analyzing horizons of intellectual property rights.It not only focuses on abstract norms of intellectual property rights in the legislative analysis,but also observes specific phenomena of intellectual propertyrights,which shows that the factual elements,such as the feature of the object,the state of the individual and the sequence of the right,are play a positive role in studying the intellectual property system.