Research On Intangible Property Issues In Divorce

With the development of knowledge economy and modern service industry,intangible property with intellectual property as the main content is increasing in proportion to the whole wealth of society.This trend makes the division of intangible property,has gradually become the dispute focal point between the two parties in the divorce case.Over the years,however,when it comes to intellectual property rights,people tend to emphasize the intellectual property rights has the dual nature of personal right and property right,and then draws the conclusion of intellectual property has a strong personal dependent.And this view is reflected in legislation at the time of divorce,both parties can couple in marriage party obtained during the existence of intellectual property income,but cannot be divided party enjoyed by the intellectual property rights itself.Due to the produce process of intellectual property income is fast or slow,with a divorce case one of the parties in the marriage relationship between intellectual property rights can not created during the existence in this period produce income--including expected earnings,and one of the parties to create intellectual activity of intellectual property rights are inseparable from the other side of the support,for example,one of the parties running all the household chores,can make the other party to make inventions,therefore,the current marriage law regulations on when divorce division of intellectual property matters burden fairness.In fact,intellectual property rights in general belong to property rights,generally understanding intellectual property rights as the combination of human rights and property rights,is not accurate.To say the least,even if the individual types of intellectual property rights,copyright,for example,contains the so-called "personal right",this kind of "personal rights" is obviously different from natural person,in addition,the property rights in intellectual property rights and the "personal right" can be separated.Therefore,in the social and economic life,the legal practice of intellectual property division is abundant.For example,the division of the company's intellectual property division.According to the relevant provisions of the company law,after the separation of the company,the original company's property shall be acquired after the division of the company.This means that when the company is divided,it needs to split the assets of the original company--essentially dividing the property.Generally speaking,the property of the original company will more or less involve the intellectual property,so the separation of the company usually involves the division of intellectual property rights.If more people inherit the intellectual property division of the inheritance.After the death of a natural person with intellectual property rights,if his successor is more than two,it will inevitably involve the division of intellectual property rights.Generally speaking,the main forms of intellectual property segmentation mainly include:(1)many people share the same intellectual property by share;(2)each person has different intellectual property rights;(3)the party obtains intellectual property rights and the other party obtains corresponding compensation.Because our country current "marriage law" will be acquired by a party during the marriage of the intellectual property rights itself out of the joint property of husband and wife,and only admitted benefits of intellectual property rights belong to the joint property of husband and wife,is based on intellectual property is the combination of personal right and property right based on the lack of convincing "jurisprudence",and the intellectual property rights itself out of the joint property of husband and wife,may also be produced in the division of property problem show the result of the unfair,in addition,the franchise mode,and other intangible property of the segmentation problem is the lack of a clear legal basis,and the supreme people's court according to the specification and of "marriage law" judicial interpretation also because we can not go beyond the legislative power and can't make up for the defects of "marriage law".Therefore,it is necessary for our country to revise the relevant laws in the current marriage law so as to better solve the problem of intangible property division in divorce.Therefore,suggested that the revised "marriage law" in an article or a paragraph of article a clear provisions during the duration of the joint property including marriage for one side or both sides of husband and wife of intangible property of the following:(1)object of intellectual property;(2)object of franchise rights;(3)other intangible property prescribed by laws and regulations.Divorce division of property in the general principles mainly include the thought autonomy principle,equality principle,the principle of take care of children and women rights and interests,on specific obligation to pay a larger compensation principle,the principle of the appropriate solution help you in your life,the principle of fault party bear the adverse consequences,these principles are also applicable to the intangible property division.In addition,the principle of economic benefit maximization based on the principle of law economics is also a factor in the segmentation of intangible assets.Besides the above principles and considerations related to the intangible property rights such as intellectual property laws,regulations or rules,if you have any restrictions to the holder of the identity in the division of intangible property,should give full consideration to the limit.In addition,in the separation of intangible property,the characteristics of intangible property should be fully taken into account,especially the time and the instability of the right state of intellectual property.