Building The Legal System To Prevent The Importation Which Infringes The Intellectual Property Rights Into China

The article first introduces the concept and foundation of the legal system. Thislegal system is reflected in the third part of Trips. When building the system everycountry member should understand overall the stipulation of the third part of Tripsand make the domestic regulation accord to it.The section337 is the legal system of preventing the importation which infringesthe intellectual property rights into the U.S.A. The USITC initiated a lot of 337investigations aimed at Chinese enterprises, and the exportation to the U.S.A wasbadly influenced. But at the same time we see that the feature of the section 337which protects the holder of IPR and the domestic industry relating to IPR and thewide-ranging use in practice has references to build the domestic such regulation ofour own.The IPR custom protection system and judicial protection system of thepeople's court are the existing legal system to provide protection to IPR in theimportation to China. The both systems have made great use of protecting to theIPR, but there is disadvantage in preventing the importation which infringes the IPRinto China. So it is necessary to build our legal system of preventing the importationwhich infringes the IPR into China. It is also feasible to build this legal system because of our relative perfect related legal system and the experiences in dealingimporting cases such as anti-dumping,anti-subsidy and importing safeguards.We should build the legal system to protect our IPR strategy. The legal systemshould accord to the third part of Trips and can make references to the reasonablepoints of the U.S section 337.In this article the author thinks that the establishing legalsystem should include the follows: laws and regulations about the IPR, and ForeignTrade Law of the PRC, and the Regulation about Preventing Unfairlimportation madeby the government, and the related implementation rules made by the Ministry ofcommerce. Though this system is implemented by the administrative department, itshould adopt the quasi-judicial mode which based on the IPR holders other then themode which based on the administrative authority.The direct basis of the establishing legal system in China is the section 2 ofarticle 29 of the Foreign Trade Law of the PRC, so the last chapter of this articleanalyzes some rules of the legal system according to the section 2 which include thefollows: the status of the IPR holders in the system; the determination of theauthorities; the determination of the in-rem jurisdiction over the importing products;the rules about determination of infringing the IPR; the remedies provided and therules of the public interests etc. In this article the author forwards some points of viewbased on the practices of preventing the importation which infringes the IPR.