A Study On The Philosophic Orientation For Justice Of Intellectual Property Legal System

Has our national Intellectual property (IP for short) system been over-developed? The characteristics of IP render it obvious externality, which is making a profound affect on world economy with no precedent. During more than twenty year's study and exploration, China has primarily set up a traditional IP legal system accord with international level, and enlisted under some of the important international treaties concerns IP. While comparing with the giant economic boom hastened by IP system in advanced countries, the "advanced IP system" seams to have brought rather obstacles to our national economy. As the advanced countries take the dominance in traditional IP area, their corporations could easily hold the market by making use of the protection of our national IP system to expand their quotient in production, service and R&D markets, to attack and exclude our national counterparts who are in disadvantage. Since then, it has come up oppugns against the protective level of our national IP system, insisting that as a developing country, China should have held down the over-protecting institution to keep the legal level accord with the economic stage.Such conception in essence concerns our assurance of the legal standard. Through evaluation to the merits of law, justice, the foremost legal criterion stands out. In summary of justice conception from ancient time till now, I conclude that justice takes the form of rights, performing a balance of people's gains with PRI, which is actually a balance between the private right and public right with the basis of the former and final aim of the latter. In term of this, private right featuring liberty and equality are logically to be fulfilled at first, then opportunity equality be guaranteed with political modulation, and finally, the enforcement of the former two principles get ensured by compulsory legal system. As John Rawls has said, people have to encounter still the distributive difference even after all these enactments, but justice can only be implemented in condition that the most disadvantaged groups get equalized. IP system renders mighty urge to the economy as long as it is provided with such concept of justice, measured by which, the system in China not only leave a lot to strengthen IP protection in future to meet the international level, but always ignores the absence of anti-monopoly law which is best in restraining private rights, as is responsible for the frustration of our national intellectual economy.In terms of legal-philosophy, the IP system aberrancy of China can find a root in the dominance of nationalism, analytical-positivism law and instrumentalism in legal culture and mentality. Chinese IP system can't step on the right path until the three of the philosophic concept be cleared away and for which, an idea of absolute justice from natural law should take the place of philosophic orientation for guidance of Chinese IP system, then a decent future of our intellectual economy can be expected.