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On The Judicial Protection Of Intellectual Property Rights In China

Posted on:2008-06-15Degree:MasterType:Thesis
Country:ChinaCandidate:C R CuiFull Text:PDF
GTID:2206360212487170Subject:International Law
Abstract/Summary:PDF Full Text Request
In this thesis, the author tries to, in the point of view of judicial protection, run back over the historical development of China's IPR protection, analyze the status quo of China's IPR protection, find out the main problems and reasons in the course of execution of China's IPR laws and come up with the possible solutions.Except for Catalogue, Chinese and English Summary, References and Acknowledgement, this thesis is divided into such 6 parts as Introduction, History Evolution Of China's Intellectual Property Right (IPR hereinafter) Judicial Protection, the Status Quo of China's IPR Judicial Protection, Main Problems and Reasons Existing in China's IPR Judicial Protection and the Possible Solutions for the Main Problems in China's IPR Judicial Protection.In the Introduction, the author firstly comes up with the concept of IPR and the three expressions of this concept in the field. Then the author shows the process of the preparation, gestation and shaping of China's IPR protection system, expressing that China's IPR legislation protection has reached the international advanced level. However, law execution is still the bottleneck in China's IPR protection system to some degree. To intensify the IPR judicial protection is not only the regulations of TRIPS and other international treaties and domestic laws, but also the urgent demand of the status quo of our IPR protection.In the part of History Evolution of China's IPR Judicial Protection, the author comes up with the concept of IPR Judicial Protection. Generally speaking, it means to protect IPR through judicial ways. In details, the obligee enjoying IPR or the State's public prosecutor brings criminal or civil litigation against the tortfeasor to the court in order to run the criminal or civil responsibility of the tortfeasor; or the party who does not accept the punishment decision made by the administration departments brings administrative litigation to the court to ask for judicial review on the administrative execution of IPR in order to retain the right administrative punishment or correct the wrong punishment and make the concerned parties'lawful rights and interests. Further, it is also the important content of IPR judicial protection that the court hears the trial over IPR transfer contract dispute or IPR permission utilizationcontract dispute in order to protect the obligee's lawful rights and interests. The author then lists the protection scope, runs back over the startup and development of China's IPR judicial protection and expresses the importance of intensifying IPR judicial protection.In the part of Status Quo of China's IPR Judicial Protection, the author sums up the traits of the status quo of China's IPR judicial protection, namely, 1. The number of civil litigation, administrative litigation and criminal suit has been on the rise and the right infringement case accounts for the absolute majority part. 2. The regional distribution of lawsuits is not even. 3. The foreign-related and Hong Kong, Macao and Taiwan-related lawsuits account for certain proportion and are also on the rise. 4. Interceded civil litigations account for a quite large proportion. 5. The new-type litigations and complicated litigations emerge endlessly. Further, the author also brings forward the definition of IPR civil judicial protection, criminal judicial protection and administrative judicial protection and sums up the status quo and traits of them.Although China has got great development in IPR judicial protection, there are still lots of problems. In the part of Main Problems and Reasons Existing in China's IPR Judicial Protection, the author offers the details of these problems and their reasons in the point of view of civil judicial protection, criminal judicial protection and administrative judicial protection. The main problems with IPR civil judicial protection are as follows: 1. The protection for obliges is insufficient. 2. The difficulty in execution of judgement is serious. 3. The related talents are badly insufficient. 4. There is fault in lawful compensation amount. 5. There are not legislation warranties for the obligees to ask the court to order the opposite party to destroy the target goods. The main problems with IPR criminal judicial protection are as follows: 1. The number of criminal suit is still quite small. 2. The connection of administrative execution and criminal judicature is not smooth. 3. The difficulty in suit investigation becomes worse. 4. The standards of criminal evidences are indefinite, which gives rise to the difficulty in suit definition. The main problems with IPR administrative judicial protection are as follows: 1. The disputes over jurisdiction cause some problems. 2. The administrative authority fails to actively perform its intermediate arbitrament right. 3. Administrative execution lacks of supervision.The above problems have badly restricted the improvement of China's IPR judicial protection level and exertion of the overall effect. Therefore, the author brings forward the possible solutions in such three aspects as perfecting the related laws and statutes, perfecting the trial system and creating satisfying social protection environment. The solutions include: adding lawful compensation into the Patent Law, enabling the obligee to ask the court to order to destroy the concerned goods in order to prevent them from going into the market and causing new infringement on the obligee, the right to know of the obligee also needs to be protected; changing the current"penalty system with freedom penalty as core and fine penalty as supplement"to"the one with fine penalty as core and freedom penalty as supplement", creating new qualification penalty, copying"Pudong Pattern"to set up comprehensive IPR court and then build appeal court of IPR litigations as time requiresm, making full use of judicial review system, setting up a set of prompt and effective cooperation system between criminal judicial authorities and administrative authorities; uniting the execution standards and intensifying the criminal law protection degree; setting up specialized IPR criminal investigative department in public security bureau; educating high-grade IPR judge team; promoting the self-conscious protection sense of the people etc.The Conclusion of the thesis summarizes the whole text and expresses the importance and pressure of intensifying our IPR judicial protection for another time.
Keywords/Search Tags:intellectual property right, civil judicial protection, criminal judicial protection, administrative judicial protection
PDF Full Text Request
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