The Study On The Protection Of Prisoner's Intellectual Property Right In The Process Of China's Rule Of Law

Can prisoners, especially those who are deprived of political rights, enjoy intellectual property rights? There are some serious legal problems behind this question, such as the relationship between intellectual property rights and political rights; prisoner's intellectual property right and penalty execution; the ways of protecting prisoner's intellectual property right, and so forth. With the development of society and the progress of the law, prisoner's human rights are basically guaranteed. However, intellectual property right, as basic civil right, also arouses people's attention. Law society stresses the protection of civil rights. Since prisoner's intellectual property right is not deprived in accordance with the law, it should get valid protection of law. For many years, prisoner's intellectual property right was rarely mentioned in legal theory society or judicial practice. Anyway, according to the practice of working in prison, the relative laws of protecting prisoner's intellectual property right is rather insufficient in our country. During the process of Rule of Law, it is essential to further completing prisoner's intellectual property right protection rule with Chinese characteristics. This article will demonstrate the protection of prisoner's intellectual property right and the related questions from three aspects.Part one mainly elaborates some basic theories on the protection of prisoner's intellectual property right. Firstly, it introduces the definitions of intellectual property right and prisoner's intellectual property right; analyses the main body, object and content of prisoner's intellectual property right. Then, it tries to analyze the definition of prisoner's intellectual property right and through which it gets the conclusion that the protection of prisoner's intellectual property right, differs from that of common civilians, containing the characteristics as follows: the main bodies of protection are various; the object is unique and restrained; the way of protecting emphasizes especially on some parts; the way of resolving dispute is limited; and so on. After that, it analyzes the theoretical base and necessity of protecting prisoner's intellectual property right. Scientific protection rule of prisoner's intellectual property right should obtain scientific theoretical system as its support. Legal theory, human right theory and scientific outlook on development are important theoretical base of protecting prisoner's intellectual property right. Secondly, it briefly analyzes the necessity of protecting prisoner's intellectual property right from the aspects of prison's scientific development and prisoner's resocialization.Part two reviews the existing problems and probable reasons on China's prisoner's intellectual property right protection. It begins with the deficiency in legislation about prisoner's intellectual property right protection, and analyzes the rules and problems in our current Constitution, Intellectual Property Law, Prison Law and so on toward prisoner's intellectual property right protection from legislation. Secondly, it argues that our prison's enforcement of protecting prisoner's intellectual property right is relatively slow. Thirdly, it analyzes the lack of judicial protection. At last, it summarizes the reasons accounted for the existing problems. The influence of Chinese traditional ideas, the reaction of social capacity, and the restriction of mind from prison system and misunderstanding of prisoner's right are the important reasons. The conflict between Constitution and Criminal Law causes dilemma when executing the law of protecting prisoner's intellectual property right. Our Constitution formulates civilians'political right while our Criminal Law deprives criminal of his political right. Moreover, depriving the freedom of speech and publishing of criminal's directly influences the execution and protection of prisoner's intellectual property right, which is a controversial problem.Part three emphasizes some rational considerations on completing our protection of prisoner's intellectual property right. Firstly, it analyzes and discusses the design concept of our protection of prisoner's intellectual property right from theory to practice. Protection of prisoner's intellectual property right should focus on the protection of prison law, base on Intellectual Property Law, and supplemented by the protection of administration rules. Our law system and some relative international convention become the important content and legal source of framing the protection law of prisoner's intellectual property right. Secondly, regulating prison's enforcing of law is the most important way to protection prisoner's intellectual property right. Increasing prison protection funds, completing prison's management rule, strengthening prison's cultural development, teaching correct intellectual right ideas to prisoners; consummating prisoner's self-protective regulation, setting up criminal's protection organization and improving the prison's law-enforcement supervision mechanism can be the ways of protecting prisoner's intellectual property right. The enforcement of intellectual property administration and co-establishing social security regulation are also indispensable factors in protecting prisoner's intellectual property right. Finally, in order to complete judicial protection, judicial authority must set up examining system toward prison law system, complete prisoner's judicial protective process and establish linkage mechanism between prison and judicial authority.