Research On Restrictive Clauses In The Contracts Of International Technology Trade

The Restrictive Clause in the international technology trade is generally defined as the contract clause that the licensor applies to the licensee, restricting his technology's acquisition, using and improving, taking advantage of the licensor's superiority in technology. Those clauses have adverse effect towards the market competition in the international technology trade, especially towards developing countries like china, who usually act as licensees in the licensing trade. So it is of particular practical significance for China to explore the restrictive clauses. The Restrictive Clause is a form of the abuse of Intellectual Property Rights, and States generally control it by the anti-monopoly law. Those clauses have reflected the paradoxical relationship between intellectual property and antimonopoly which is that intellectual property constitutes a justified monopoly and therefore is an exception to antimonopoly; nevertheless, an exercise of intellectual property right should not hinder competition, otherwise it is also regulated by antimonopoly.The restrictive clauses have various types, but there are different classification and provisions in States, and the world has not come to an uniform provision for it. However, several typical restrictive clauses have been widely recognized by countries in the world, for example, clauses about tying provisions, clauses of feedback, clauses of not questioned, technological advances restricted clauses, and clauses of restrictions on exports of technology products.The problem of restrictive clauses exists in almost all countries, but there are differences on its judging principle, sanctions, and management bodies between countries. Such differences are not conducive to the further development of national economy, and contrary to the Global Unity Movement with the economic and legal. In order to harmonize the divaricator of countries in the restrictive clause, the international society has tried times .In this thesis, a brief introduction is given to the trials of International uniform legislation for the restrictive clause, and the emphases is attached on the relevant rules of TRIPS. But the provisions of these legal documents are too principles, lacking of workable, specific measures. Furthermore, as a regional international organization, EU's legislation about the restrictive clauses is fairly mature. European Commission promulgated TTBER in 2004.It determined the scope of exemption, the market share datum to exempt, and the core qualifying clause not applying to exemption.A series of international legal document, which is released by international organization such as United Nations, is not mature; Even TRIPS leaves the problem to the domestic legislation. It makes various countries' domestic law becomes the main basis to control the restrictive clauses. Moreover, the legislative practice of related country and area is changing with each passing day. But, the legislation about restrictive clauses is very different between countries. The difference mainly manifests between the developed countries and the developing countries. First, it is different in legal origin. The developed countries controls the restrictive clauses by the antimonopoly law as a whole, and makes adjustment by the independent regulations or acts according to the technology trade's characteristic simultaneously; But the developing countries makes the restrictive clauses explicitly through the skill transfer law, which focuses on the particularity of the technology trade. Next, it has a different understanding on judging principle about restrictive clauses between countries. The developed countries use the competition standard generally, but the developing countries mostly use the development standard. Third, it's different in the appraisal rule. Developed countries use the"itself illegal principle"and the"reasonable principle"generally; But the developing countries mostly use the method which enumerates, stipulate each forbids clause explicitly, and also gives Department responsible right for the work of certain or refusal simultaneously. Fourth, it is different in the control measure towards the restrictive clauses. In the developed countries, it has a strict sanction if you violate the antimonopoly law; But the developing countries only request the litigants to amending the restrictive clause usually.The restrictive clauses are controlled by Contract Law, Foreign Trade Law, Antimonopoly Law, mainly the Antimonopoly Law. The progress of the Antimonopoly Law mainly manifests in the following three aspects. Firstly, it forbids two kind of behaviors in the 14th article, which similar to"the itself illegal principle"in the American antimonopoly law; Other types should use"reasonable principle", because they have the rationality in many situations. Moreover, the third section in the 14th article is a all in all provisions. This legislation made major progress compared with before. Secondly, Article 15 provides for exemption of seven cases, and the seventh section is a all in all provisions. These not only increased the legal stability and predictability, but also cope with the new situation at any time, without losing flexibility. Thirdly, it's made great progress in the law enforcement system. It draws on committed system in European Union competition law, and the forgiveness policies in United States antitrust law, which improving the efficiency of the anti-monopoly law enforcement; In the legal responsibility, the Anti-monopoly Law increased penalties, greatly improved the legal deterrent. But, even if our country has released Antimonopoly Law newly, the legislation related to the restrictive clauses still had its deficiency. This is mainly manifested in the following aspects: in the building of the agencies for anti-monopoly enforcement, a number of agencies enforces the law separately, which will undoubtedly affect the effectiveness and authority of the law; Lacks the review and monitoring mechanism, also lacks judicial relief system to the subject and the victim.For repairing shortages of law and perfecting legislation system as for international technique exchanges in China, according to analyzing domestic state of legislation and legislative experience of other countries, we may improve our countries' relevant legislation from the following aspects: First, adopt the"competition standards"and the"development standard"together on the judging principle. Because the two parties of developed countries and developing countries do not make compromise easily under the present situation, and double standard is unrealistic, also not inconsistent with developing countries'interests. Second, instituting a operable accreditation rule for the restrictive clauses .Such accreditation rule may include, but not limited to the following aspects: whether the contents of the restrictions subjects to legal protection of the rights of the technology transfer parties, whether the contents of the restriction is helpful in sustaining and improving development of international technology transfer, and whether the contents of the restriction is harmful to the free competition. Third, The State Council should establish a unified and independent agency for carrying Anti-Monopoly Law out, and giving it more independence, quasi-judicial powers and more responsibilities; Fourth, aggravating legal liability of restrictive behavior in the set of the legal responsibility, including specific provisions in civil damages standards, introducing punitive damages system, increasing amount of administrative fine, imposing criminal liability to serious illegal restrictive behavior. In addition, the relevant regulations of the anti-monopoly law should be established as soon as possible.