Research On The Construction Of Intellectual Property Administrative Protection System In China

Since the first promulgation of the patent law of the People’s Republic of China in the early 1980 s,"administrative protection" has frequently appeared in various legal norms and policy documents of intellectual property rights,which has become an issue that can not be easily bypassed by the academic community.In particular,on September 23,2021,the outline for building a strong intellectual property country(2021-2035)issued by the CPC Central Committee and the State Council proposed to "improve the administrative protection of intellectual property and coordinate the linkage relationship between the government and the market".It can be seen that the research focus of intellectual property administrative protection in the future should focus on promoting its legalization process rather than the issue of "going or staying".In 2008,the outline of the national intellectual property strategy raised intellectual property rights to national strategic resources.Intellectual property rights broke through the cognition of the attribute of private rights under the traditional legal theory,and the object of rights expanded to the field of public law.However,this dual attribute state is facing an indecipherable dilemma in the current intellectual property protection system.In particular,since the general office of the State Council forwarded the notice on the in-depth implementation of the national intellectual property strategic action plan(2014-2020)issued by the intellectual property office and other units on December 10,2014,and officially put forward the new goal of intellectual property development of "building a strong intellectual property country" in the form of official documents,a series of debates on "administrative protection" have become more intense,These arguments have been integrated and refined into the logical main line of this paper: what is the rational basis of intellectual property administrative protection? What is the theoretical basis of the administrative protection system of intellectual property rights? Is the administrative protection system of intellectual property rights in line with the basic national policy of governing the country according to law?The inherent dual right attribute of intellectual property and the consistency between the legal relationship of intellectual property and the content and mode of administrative protection in the planning stage when intellectual property is defined as "national strategic resources" have become the rational basis of administrative protection of intellectual property.On this basis,on the one hand,redefine the concept of intellectual property administrative protection system-state administrative organs,organs of the Communist Party of China,competent organs of national defense intellectual property rights,and authorized organizations of national administrative laws and regulations guide,promote,support,support and ensure the healthy development of intellectual property rights and maintain the order of intellectual property rights in accordance with the legal norms of intellectual property rights,A new and integrated public administration system serving the country’s strategic goal of building a strong intellectual property country.On the other hand,it comprehensively summarizes the extension of the administrative protection system of intellectual property rights from two aspects: the life cycle of intellectual property rights and the operation process of public power,It also introduces the theoretical and practical value of the system from the two perspectives of meeting the needs of the reform of "release,management and service" in the field of intellectual property and the innovation driven development strategy under the new economic normal,so as to fully discuss the intellectual property administrative protection system proposed in this paper.The construction of the "system building" of intellectual property administrative protection system needs not only the government function theory as the foundation and the intellectual property incentive theory from the perspective of public welfare,but also a series of administrative law theories as the framework support.For the administrative protection system of intellectual property rights,specifically,"intellectual property" is the foundation,which determines the horizontal dimension of the whole system,while "administrative protection" is the key point,which determines whether the vertical form of the system meets the requirements of the operation of the rule of law.Then,the operation theory of public power,especially administrative power,such as administrative process theory,administrative negotiation theory and administrative behavior theory,has become the theoretical support of the system.However,no matter how rigorous the theoretical framework is,it lacks a specific system and mechanism,and the content is only "gold and jade".At present,China’s intellectual property administrative protection not only lacks a unified superior law norm to guide practice,but also has many inconsistencies with the legitimate principles in the design and arrangement of system and mechanism,which is not conducive to the long-term development of intellectual property administrative protection,Similarly,it is not conducive to the implementation of the basic national policy of comprehensively ruling the country according to law.Aiming at this problem,the author drafted the legal text of the basic law of intellectual property rights,and made an overall design for the institutional mechanism of the administrative protection system of intellectual property rights on the basis of this text,in order to answer the problem of how to systematize the administrative protection of intellectual property rights in a normative sense.In addition to the introduction and appendix,this paper is divided into five chapters.The first chapter is the basic overview of the administrative protection system of intellectual property,which mainly studies the rationality of the administrative protection of intellectual property,the connotation and extension of the administrative protection system of intellectual property,and the significance of the construction of the system to the current practice of intellectual property protection.The second chapter is the theoretical discussion of intellectual property administrative protection system,which mainly explains the theoretical basis of the construction of intellectual property administrative protection system from government function theory,public regulation theory and incentive theory,and expounds the theoretical basis of the operation of intellectual property administrative protection system from the theories of administrative procedure theory and administrative legal relationship.The third chapter is the analysis of the challenges and causes faced by the administrative protection system of intellectual property rights,summarizes and summarizes the five major problems existing in the administrative protection system mainly based on the manifestation of public power,especially the problems existing in administrative law enforcement,and systematically analyzes the causes of these problems.The fourth chapter is the investigation and Enlightenment of the extraterritorial intellectual property administrative protection system.Taking the United States and Japan as representatives,it investigates the institutional setting,functional arrangement,policies and regulations in the intellectual property administrative protection of the two countries respectively,and puts forward corresponding suggestions on the problems of China’s intellectual property administrative protection mentioned above on the basis of learning from their experience and combined with China’s national conditions.The fifth chapter is the suggestion of constructing the administrative protection system of intellectual property rights based on the basic law of intellectual property rights,which explains the basic law of intellectual property rights from four aspects: the analysis of feasibility and necessity,the main purpose of legislation and the concept of political philosophy,the basic principles and main contents,and the relationship with relevant laws,On the basis of this law,the system design of intellectual property administrative protection system is carried out to ensure the unity and standardization of intellectual property administrative protection system.The appendix is the basic law of intellectual property(draft proposal).Through the summary and sublimation of the previous text,the draft proposal of the basic law of intellectual property is drafted.