Study On The Pledge Right System Of Plant Variety Right

The plant variety right is a new type of the Intellectual Property Right in our country. The National Strategic Outline of the Intellectual Property Right which is drawn up by the State Department and promulgated to implement during this year, lists the plant variety right coupled with the patent right, the exclusive right to the trademark, the business secret as the fundamental framework and the important resources gathered by the various factors such as economy, technique, law and etc into the integrality, which has pushed to the development of the economy and the society. As a type of intangible property right, the plant variety right's value is gradually recognized by the seed business enterprises and the research units. The plant variety right is the capital factor which has the most vital force in the seed business enterprises. The financial guaranty of the pledge of the plant variety right is the beneficial quests to either the seed business enterprise and research unit or the financial business enterprise.Our country hasn't built up the sound legal system of the plant variety right's hypothecation. Compared with the quantity of the applications and warrants for the plant variety right, the pledge of the plant variety right is very little in quantity and obviously fell behind, which has a main relation to the undeveloped system of the plant variety right.The plant variety right has many features such as intangible, exclusive, regional, time-limitative and derivative, which cause it to be evaluated difficult. The plant variety right belongs to the property right out of the ownership, which is transferable, is suitable to be pledged. The plant variety right has non-property right in addition to the property right, the marking right, authorship and granted right cannot be the object of the plant variety right, just because they aren't transferable. In addition to the difference of the objects, the plant variety right is different from the other type of pledge as the aspect of the establishment.The requirements of the plant variety right embrace the positive and the negative. The hypothecation of the plant variety right is created as the object , but not all the plant breeder's rights could be the object, only transferable rights could be the object in nature. The plant variety right consist of property right and personal right, in which authorship of the plant breeders, marking right and granted right are the personal right. The right of the production, sell, use, permission, transfer and recourse of the plant breeders could be the object of the plant variety right.The certification of the plant variety right, in some extent, acknowledge the existence of the plant variety right, but it doesn't means that you could got plant variety right when taking possession of the certification. Currently, our country adopts the doctrine that the registration takes effect, the plant variety right is public by the registration. The transfer a certification doesn't transfer to take possession of the object of the plant variety right. Only when got the registration by the Agriculture Ministry and the Office of the protection of the plant variety right in National Forestry Bureau, it makes the status of the plant variety right.The enactment of the plant variety right always is obtained due to some facts and legal action, it's a usual way to get the pledge. When the pledge get enacted, the parties shall conclude a contract in writing and hand over some relative certificates, in the meantime, they should register the pledge contract with the registration authorities. The purpose of the registration is in order to be public and to manipulate by the authority.The Promise to set the plant variety right in the pledge contract, stipulate the duties and rights between the parties, it belongs to the claim contract. The pledge contract shall become effective upon the delivery of the pledged property to the possession of the pledge, so it is a practical contract. The enactment of the plant variety right is the act to set the pledge between two parties, it shall make the real right into alteration, so it belongs to real right's act, when the pledge is set, in addition to the"same meaning", the registration of the pledged property could be the effective requirement.The pledge right of the plant variety right shall perform certain registration procedure, so it can't apply to obtain in good intention. The plant variety right which is a type of property, is not exclusive, it couldn't apply to the assignment of rights. When the pledge right of the plant variety right transfer, the assignee has rights to ask for the assigner to help him to handle the registration procedure of changes.The scope of the credit secured by the pledge of the plant variety right, not only includes the main credit but the secondary credits, such as interests, liquidations, damages, and depository fee of the pledge and the right of plant variety right which is carried out includes the fees of the assessment, auction, preservation and etc. If otherwise provided for in the pledge contract, the provisions there shall apply. Given that that the right of the plant variety right is special, the urgent expense which the ledger keeps the evaluation of the plant variety right could be in the scope of the secured credit.Currently, the scope of the availability of the plant variety right mainly includes the admission and implementation before the plant variety right pledged, the derivative plant variety right. The author believe that the pledge which is established by registration, the profits out of the transference and possession could prefer to pay the credit. When it comes to the derivative plant variety right, the pledger of the plant variety right pledged, the availability certainly within the reach of the plant variety right. The derivative species secondary to the plant variety right are fructus, in accordance with the principle that the transfer to the fructus followed by the original thing. The author thinks that should distinguish the derivative species after having pledged. In a word, theoretically, the availability of the pledge could reach to the derivative species right. The author thinks that the plant variety right has already been evaluated fully, includes whether the techniques is opened entirely, or whether the technician could carry out. They all embody the evaluation of the plant variety right.The pledger's rights include the perform of the pledge, the back-end of the fructus, the pledge right to transfer, the depositary right of the plant variety right, the right of subrogation, the right to lien the certificate. The duties which the pledger need to undertake mainly contain that firstly pledger cannot appropriate and use the plant variety right before the term of the debtor perform expires, secondly pledger shall deposit the certificate of the plant variety right properly in good faith, in case the certificate is destroyed.The pledger's right of the plant variety right includes the right of implementation, advanced repayment of credit, the appropriation to the object of the plant variety right when it suffers the market risks, defense right to the pledger, the claims to negatoria and the right to absolve the pledge contract, multiple pledge. The duties to the pledger is obliged to accept the limitation, ant to deposit, in the meantime, to keep the plant variety right existent. Meanwhile, when the right of the plant variety right is infringed, the pledger should enjoin the infringement in time, and ask for relief up to the administrative authority and take action to court.The credit has already not be discharged at its maturity is the general requirement of the enforcement of the right of plant variety right. If the other conditions legal and agreeable happen, however, the secured credit is not discharged at maturity, the pledger also could exercise the pledge in special condition. There are two types of the conditions, firstly accord to the legal making and agreement. Secondly the debtor has obligation to maintain the pledge, but he undertake the property secured.The extermination of the right of plant variety right has a lot of reasons, such as to discharge credit, to offset, to abandon and to enforce the pledge and etc. Moreover, there are other special conditions, for example, the extermination and amalgamation of the plant variety right. Currently, our country hasn't build up the water-tight plant variety right. So it really makes sense that design to establish the system of pledge financing. The writer puts forward to conceive some ideas, which point to some resolving actual problems combined with practical work, the ideas include the evaluation system of the plant variety right, the submission system, the registration system of the pledge of the plant variety right.The main perplexity of the system of the pledge of the plant variety right is whether the right to apply is the object to the pledge. The author thinks that it is property right, and is transferable. So the application right could be the target object to the pledge. If our country establishes the system of the pledge of the plant variety right, we should insignificantly settled two problems as follows. They are the evaluation system and the registration system of the plant variety right.To establish the evaluation system is determined by the influence on the profit of the pledger and value of the plant variety right due to certain features, such as intangible, time-limited, regional. The dynamic evaluation of the plant variety right should aware of various problems about stability index, the participation of the examinant and evaluation to assess the plant variety right.With regard to the registration system of the plant variety right, the writer thinks that it is resistant condition but not effective condition. In condition that the system of the pledge of the plant variety right is under-developed, the registration set for the pledge of the plant variety right has special meaning to secure the interest of two parties. Urgent task on hand, we shall establish the registration system of the pledge of the plant variety right and formulate the content and procedure of the registration, the reasonable standard of charge which is convenient to register the pledge. Ultimately it reaches to lower the cost, and to exalt the efficiency and to promote the establishment of the plant variety right, and to keep the credit safe.