On The Use Of The Theory Of Efficient Breach In The Field Of The Protection Of Intellectual Property

The theory of efficient breach is a default theory which is the school of theeconomics analyzing of law in America applied economic analysis in the area of thelaw to add the social benefit so that realize the social welfare maximum. The defaultis considered valid if compare performance the earnings is more when the one breachthe contract which can realize the high use of the social resource and accumulation thesocial wealth. It makes the resource flow to the people who need it most.Our country is deeply influenced by continental legal system which focus on theperformance of the contract. Different from the common law system which has a boththeory and practice support, the application of the theory of efficient breach in ourcountry encountered a denial. In addition, at present, the study of this theory is mainlyon the contract law. Intellectual property owing to its unique characteristics isdifferent from other tangible property. So through the analysis of the contracts in thefield of intellectual property law, I hope can provide some basic preparation for theusing of the theory of efficient breach in the field of intellectual property.My paper can be divided into three parts.The first part is an overview on the value. Through the demonstration prove thistheory is valuable, efficient and not immoral. And then research on the application ofthis theory in the contractual restraints of intellectual property limitations.The second part through the analysis of the application in various countries, we can clarify that the application of this theory is based on the corresponding systemsuch as damages. After that, by means of the research of current legislation andpractice related to license contract of intellectual property, we can find the feasibilityof this theory in the area of intellectual property.The third part, according to previous research, the combination of the value ofthis theory and the condition of our nation can make us get a conclusion that thistheory can be applied in the field of intellectual property. In the end of the paper, Ipropose some legislative and judicial suggestions of the application of this theory.