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Liability Principle Of Act Of Tort In TRIPs And Judicial Protection For Intellectual Property In China

Posted on:2005-12-18Degree:MasterType:Thesis
Country:ChinaCandidate:J W SongFull Text:PDF
GTID:2156360152456939Subject:Law
Abstract/Summary:PDF Full Text Request
The liability principle of act of tort in TRIPs is a controversial focus in jurisprudential circle. This thesis begins with the elucidation on the theoretic evolution of liability principle of act of tort and the nature of "liability". It illustrates that "principle of no-fault liability" is not the mainstream of the international liability principle of act of tort of intellectual property rights by listing relevant foreign legislation. There are strict limited conditions for the application of "assumption of fault" in western countries. Through the analysis of the real meaning of relevant articles in TRIPs, it points out that the agreement establishes the liability principle with the priority of "fault liability" and the assistance of "no-fault liability". On such basis, according to concerned spirits of TRIPs, the author oppugns the wide application of "assumption of fault" in the trial of intellectual property rights which is proposed in "five common understandings" formed in current judicial practice of intellectual property rights and considers that it is rather disadvantageous for the protection of immature domestic intellectual property rights economy to carry on intellectual property rights trial under the guidance of " five common understandings", which consequently make the level of intellectual property rights protection greatly exceed the lowest level prescribed by TRIPs. Therefore, it is urgent to amend "five common understandings" to make the defining standards of tort give priority to "fault liability" again. There are four capters in this thesis.The first capter mainly elaborates on common theories of liability principle of act of tort of intellectual property rights. It begins with the elucidation on theoretic evolution of liability principle of act of tort and the nature of "liability" and points out that liability principle of act of tort only refers to assuming liability of compensation for tort damage, rather than assuming all the civil liability that belongs to the category of right of the real claim , in other words, the applicable scope of liability principle of act of tort is liability of compensation for damage, which is assumed by the actor. On this basis, it illustrates some relevant cases of legislation in western countriesand explains that "principle of no-fault liability" is not the mainstream of the international liability principle of act of tort of intellectual property rights, establishing foundations for accurate understanding of relevant articles of the agreement.The second capter mainly analyzes the real meanings of several relevant items in TRIPs, and disputes several principal viewpoints on liability principle of act of tort in TRIPs in domestic jurisprudential circle. The thesis points out that it is the first article of item 45 of the agreement that establishes principle of fault liability of act of tort and the second article contains the content of principle of no fault liability. The limited applicable scope of this article should not be taken as the excuse to deny the fact that this article has established principle of no fault liability and to consider liability principle of act of tort in the agreement as principle of fault liability. Meanwhile, item 16 "the granted rights", item 34 "quotation liability of method and patent", item 36 "duplicate layout", item 37 "activities that need not allowed by people possess rights" and item 44 "ban" are regulations concerning "fault liability" as some reviewers point out, that is, the agreement does not point out that no liability of tort is assumed with no fault in some specific limited places. Therefore, it can not be inferred that everywhere with no specific explanation implies "no fault liability" and that the agreement carries out no fault liability completely. As a result, the partial assumption that what the agreement establishes entirely is "fault liability" and "no fault liability" is wrong. It is the liability principle of act of tort "with the priority of fault liability and the assistance of no-fault liability that TRIP...
Keywords/Search Tags:Intellectual
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