Research On The Legal Issue Of Intellectual Property Pre-litigation Behavior Preservation Of Our Country

Based on the Trips agreement, China has gradually set up intellectual property pre-litigation behavior preservation law system since joined the WTO accession, which is established by procedural law- special law of intellectual property rights- administrative regulations and judicial interpretationes, however, this kind of "airborne" type of legal transplant has highlighted many legal issues to be solved.As a result, this thesis will take the related legal problems and solving suggestion as two main line, divided into six parts to discuss intellectual property pre-litigation behavior preservation system of our country. The first part is the introduction part, we will focus on the background and research status; The second part will clarify the concept of intellectual property pre-litigation behavior preservation by comparing different types of preservations, and then, summarize its characteristics, Including urgency, timeliness, invisible, professional and forensics difficult. The third part will base on statistical quantification and theoretical analysis, and elaborate the theoretical meaning and practical significance of consummating our intellectual property pre-litigation behavior preservation system. The fourth part will put forward the outstanding legal issues of our intellectual property pre-litigation behavior preservation system, including the "one size fits all" problem on type of distinction, standard of review and guarantee system, problems of lacking hearing system and the judicial compensation system, the problem of one level review system. The fifth part will further analyze the shortcomings and merits of extraterritorial related systems by comparing the two legal systems, this part will discuss extraterritorial related systems' reference significances from perspective of case handling, protection of the clients' rights of speech and relief procedure, at the same time, summarize exhortations from extraterritorial false disciplinary system. The sixth part will put forward some immature views and suggestions. Firstly, our country should further distinguish intellectual property pre-litigation behavior preservation from intellectual property behavior preservation in the proceedings. Secondly, establish the mutative standard of review which consists of triumphant possibility in the lawsuit, damage elements and guarantee. Tertiary, scientific setup notifications procedures, summons procedures and hearing procedures. Simultaneously, establish three exceptions of guarantee system. And then, established the double relieve system made up by jurisdictional courts and senior courts. As for liability of Incorrect preservations, this part will pull in judicial compensation based on reparation liberty of litigant, litigant can also consult to distribute the reparation liberty.