Comparison Of Administrative Protection And Judicial Protection Of Intellectual Property

Under the background of knowledge economy nowadays, administrative protection and judicial protection of the intellectual property play a critical role on the development of the economy, culture, trade, science and technology of a country. The combination of the administrative protection and judicial protection of the intellectual property is not only the rule of the TPIPS agreement, but also the practice of our country for a long time.Nowadays,safeguarding the legal rights of the intellectual property obligee,protecting their vital interests, safeguarding the rights of the public to participate the economic and cultural life and enjoy the intellectual creations, and promoting the scientific and technological progress and harmonious development of society are more and more close. This paper discusses the following three parts.The first part takes the summary of our country’s administrative protection and judicial protection of the intellectual property as the basis to educe the relationship between the intellectual property and the development of the economic and social, and emphasizes the effect of the intellectual property on the culture, trade, science and technology. At the same time, it points out the important impact of intellectual property on the daily life of citizens, proposes that the intellectual property is a kind of private right, and emphasize the trend of our country’s intellectual property as private rights. Intellectual property tort is a kind of behavior that the actor exercise intellectual property rights of others in the case of neither having the legal basis nor the contracts and should bear civil liability according to the law. Intellectual property tort is the object the tort law regulates, and also the object the intellectual property law regulates. Researching the law adjustment mode of the intellectual property tort has an extremely important role on protecting the legal rights of the intellectual property obligee, punishing infringers and maintaining social and economic order. However, due to the special nature of intellectual property, and the complexity, diversity and privacy of intellectual property tort, the law adjustment mode of the intellectual property tort is extremely complex. The second part is comparative study between the judicial protection and administrative protection of intellectual property in China. First, the paper analyses theory and characteristics of the administrative protection of intellectual property in detailed, and introduces the concept and main measurements of administrative protection of intellectual property, which including the administrative indeed, administrative penalties, administrative mediation, and the administrative administrative reconsideration of the intellectual property, and emphatically analyses the main measurements of the administrative protection of intellectual property from these several aspects. Second, the paper describes the theory and characteristics of the judicial protection of intellectual property, and introduces the concept characteristics of judicial protection of intellectual property in China. The judicial protection of intellectual property is the protection of intellectual property through legal approach. For decades, China’s judicial protection of intellectual property rights has made remarkable achievements, but there are some problems to be solved, one of the most prominent problems is that the judicial protection of intellectual property owners is insufficient, judicial protection is inadequacy, and the punishment to the person who violates the intellectual property is not strong enough, which asks us to continue to study the theory and practice of the judicial protection of intellectual property, study the development trends of China’s judicial protection of intellectual property, and use it for reference to solve our problems in the judicial protection of intellectual propertyThe third part proposes improvement of China’s intellectual property judicial protection and administrative protection system, and discusses the following aspects. The first one is to improve the administrative protection of our intellectual property legislation for further safeguarding legal rights of our citizens and the owners of the intellectual property, and to provide the legal basis. The second one is the establishment of judicial protection of intellectual property rights and promotion of its classification mechanism. Doing the basic legal work in the whole society, propagandizing intellectual property law to all citizens, informing them about what acts are illegal and which acts violate the legal rights of others, so that the public will restrict their actions within the extent permitted by law. At the same time, establishing a more sound and practicable propaganda mechanism, and forming a good law enforcement system, such as media, Internet, and etc., to ensure the administration of propaganda. The third one is to improve the hearing system of intellectual property legislation. At the same time of the Intellectual property legislation, the need of the public should be listened widely in order to establish a balanced legislative mechanism and to regulate the related behavior in the intellectual property field through the unified and normative legislation. Legislative hearing system requires our legislature should listen to the views of a wide range of staff at all levels openly, fairly, impartially and representatively in the legislation process, and it also requires we establish a fair and democratic platform so that they can voice their interests and aspirations as much as possible. At the same time, the legislators should also establish a global point of view and evenly grasp, in order to reflect the balance and flexibility of legislation. The fourth one is to establish a normative administrative enforcement system of intellectual property. Enhancing the law enforcement efficiency of the administrative law enforcement personnel, managing uniformly, enforcing efficiently, and implementing the internal supervision of power, thereby, to enhance the law enforcement strength. The fifth one is to improve the judicial and administrative co-protection system. Judicial protection is a kind of protection of firm formality but low efficiency, and administrative protection is a high efficiency, timeliness and strong, but inaccurate protection. Individual judicial or administrative can not be protect intellectual property comprehensively and effectively, but if combine these two protections as a coexistence and take advantages of themselves, they can overcome the disadvantages of each other and form an efficient and orderly intellectual property protection mechanism.But in the reality, there are also many aspects need to be perfected about the the application of administrative and judicial protection of intellectual property. Although in this paper we have proposed proposal to perfect it in several aspects, there are still many deficiencies. Let us work together for playing their best states of the administrative and judicial protection of intellectual property, so as to ensure a better social effects. As long as we adhere to using the administrative and judicial protection to protect intellectual property, and combining the specific conditions in the process of legislation and enforcement, China’s judicial and administrative protection system of intellectual property can be more legitimately and reasonably applied. Only we have the spirit of fair, open and democracy, which can ensure having a better social effect of the administrative protection of intellectual property, can protect legal rights of the intellectual property owners better, can also improve the administrative efficiency in the practical work of the department in charge of intellectual property administrative protection in China, and can safeguard the good development of China’s socialist economy and social.