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The Restrictive Business Clause In International Technology Trade And Advice On The Relevant Legislation In China

Posted on:2005-02-23Degree:MasterType:Thesis
Country:ChinaCandidate:Y BaiFull Text:PDF
GTID:2156360122985380Subject:Law
Abstract/Summary:PDF Full Text Request
The Restrictive Business Clause in the international technology trade is generally defined as the contract clause that the licensor applies to the licensee, taking advantage of the licensor's superiority in technology. These clauses provide irrational restrictions to the licensee and therefore are prohibited and controlled by laws. However, because of the different understandings of the developed country and the developing country on the restrictive business clause, the world has not come to an exact and uniform definition for it.With the purpose of deeply disclose the essence of the restrictive clause; this thesis analyzes the clause from the point of view of intellectual property, international commodity trade and national interest and proves that the restrictive clause in the international technology trade is of both characters of intellectual property and international commodity trade and more complicated and more harmful than the restrictive clause in the international commodity trade. The legal control of the restrictive business clause represents the balance between the public interest and individual interest of intellectual property and reflects the conflicts and compromise of the national interests. In the worldwide, the legislation of the restrictive clause can be divided into two types, which are legislation in developed countries and in developing countries. The two types of legislation have separately emphasized on the different essential characters of the restrictive clause, that is, the developed countries emphasize on the trade character and the developing countries on the intellectual property character.This thesis compares the legislations of the restrictive clause in developed countries and developing countries, especially in the respect of judging principle, legal source and legislation mode, jurisdiction and governing laws, and rational restriction, exception and exemption, analyzing their pros and cons and giving relevant advice.In order to harmonize the divarication of developed countries and developing countries in the restrictive clause, the international society has tried times. In this thesis, a brief introduction is given to the trials of International uniform legislation for the restrictive clause and the emphases is attached on the relevant rules of TRIPS. Clause 2 Article 8 and Article 40 of TRIPS have given instruction in principle and offer the member countries the domestic legislative right. This thesis finds out the defects of the said TRIPS rules and its influence on developing countries, and further explores the implied requests on the domestic legislation of the member countries.The present legislation of the restrictive clause in our country is far from satisfaction to the need of rapidly developing international technology trade. It is an ideal way for the restrictive clause legislation that to study the experience of developed countries to establish our own perfect, flexible anti-monopoly law based on our country situation. With the general introduction of our present legislation of the restrictive clause, the thesis analyzes the insufficiency of our present legislation and gives suggestion on the aspects of legal origin, legal mode, judging principle and extraterritorial application, in order to constitute our anti-monopoly law to control the restrictive clause.In this thesis, the analysis methods, such as compare analysis and interest analysis are applied. Although the writer has tried to collect and read articles and books concerned as many as possible, the viewpoint of the writer in this thesis may be of shortage. Thank very much to my tutor Ding Wei, who has helped me a lot to prepare this thesis.
Keywords/Search Tags:Restrictive Clause, Intellectual Property, International Technology Trade, International Commodity Trade, National Interest, Developing Country, Developed Country
PDF Full Text Request
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