The Expected Benefit Segmentation Of Intellectual Property After Divorce

In recent years,under the background of market economy and the continuous development of science and culture.Not only have people been greatly promoted in material life,but also greatly enriched in the spiritual world.As a spiritual product,intellectual property rights bring more and more economic benefits in people's property.Compared to the general interests of property,intellectual property has more uncertainty,because intellectual property itself is a kind of intellectual achievements,it is translated into material property before its economic value in the "expected state",the "expectations" called"knowledge property right".Due to the imperfect laws in China,the anticipated interest division of intellectual property rights after divorce has created many problems in judicial practice.First of all,because China' s legislation does not recognize the expected interests of intellectual property rights as a common property of husband and wife.This has caused a great deal of controversy in the theoretical circle.Many scholars believe that the expected interests of intellectual property rights should be the same as that of intellectual property rights,which belongs to the joint property of both spouses.Secondly,in the judicial practice for knowledge property right is mostly to "appropriate care" approach,but the provisions on"appropriate care" is very vague,resulting in different judicial application.Thirdly,due to the complexity of the intellectual property rights,when the husband and wife enjoy intellectual property rights,the division of interests should be analyzed in detail,and can not be generalized.Finally,the law does not specify the division of the expected interests of intellectual property rights after divorce.In view of the above problems,this paper puts forward the following suggestions.First of all,in legislation,we should recognize the intellectual property rights and look forward to the interests of the common property of the husband and wife.The exclusive property of intellectual property should lie in its personal right,and property right belongs to the part that can be divided in intellectual property right.The vested interests and expectant interests of intellectual property belong to the property right of intellectual property,but in essence,there is no difference.Therefore,since the law determines the separability of the vested interests of intellectual property rights after divorce,the expected interests of intellectual property rights should be defined as the scope of the joint property of husband and wife after divorce.Secondly,make clear the difference between "proper care"principle and "segmentation".The proper care should be taken as a way of dealing with the special property under the premise that the interests of the intellectual property are expected to be the joint property of the husband and wife.Thirdly,define the types of interests to be divided between husband and wife during the period of intellectual property rights.The knowledge generated from premarital case,if the income from intellectual property to marital interests should be treated as community property;if the marriage did not produce income would depend on whether the party for non intellectual property creation of intellectual property rights expectation interest made directly or indirectly with the distinction.In the case of intellectual property rights arising from marriage,whether the income comes from marriage or after marriage,the expected interests of intellectual property should be separated.Finally,it puts forward the concrete segmentation method of intellectual property expectation interest after divorce.In order to take into account the intellectual property rights to fairness and efficiency benefit segmentation,recommended by the non-intellectual property rights of all parties look forward to the interests of the right of claim division,the principle of dividing one-time segmentation and proper care supplement.