On Intellectual Property Rights Acquired By Husband Or Wife And Belonging Of Relevant Earnings

The current Chinese legislation and related judicial interpretation of the common property of husband and wife,although the provisions of the intellectual property,but its identified a total of the object and scope in the academic and judicial practice are controversial.With the rapid development of social economy,the current legislation highlights the lag.In this regard,this article according to the question,analysis and problem-solving ideas to start with the husband and wife side of the intellectual property and its income as the object of study,from the judicial practice of the case,combined with the current status of legislation and the current academic point of view to discuss The ownership of intellectual property rights and their proceeds from the husband and wife,and to make recommendations on the division of intellectual property acquired during the duration of the marriage,with a view to assisting in judicial practice.This paper is divided into four parts:The first part of the case from the case to explore the issues to be discussed,combined with the current legislation in China to analyze,and finally found the current legislation problems.First of all,from the trademark and patent cases to ask questions,marriage,the nature of intellectual property itself? What is the scope of the proceeds of income in the marriage? In order to clarify the object of this article to study-the husband and wife side of the intellectual property and its benefits.And then analyze the current legislation,combined with case one and case two cases found that legislation has the following questions: To clarify the ownership of intellectual property rights,the "intellectual property rights" attribution of the existence of contradictions and intellectual property division is too simple.The second part analyzes the attribution of the intellectual property rights of the husband and wife as the main content,which clarifies that the attribution of the intellectual property rights obtained by the husband and wife should be discussed and discussed.First of all,the narrative and analysis of the current academic circles on the husband and wife side of the intellectual property rights inherent ownership of the relevant doctrine,there are three main points of view: personal property,said the common property and intellectual property part of a total of said.It then clarifies the special nature of intellectual property in the property of husband and wife.Based on the analysis of the particularity of intellectual property rights,the attribution of intellectual property rights to the husband and wife is discriminated according to the type of intellectual property.That is,the dual nature of intellectual property rights,that is,copyright,patent rights itself should belong to the creator of the party;no personal rights of intellectual property rights,that is,the rights of the trademark itself as a couple.The third part analyzes the ownership of intellectual property as the main content.First,the proceeds of intellectual property are defined as the fruits obtained from the use of the license or the consideration of the fruits of the transfer,and then the scope and type of intellectual property rights,the different time periods from which the proceeds are obtained and whether the gains have been achieved Departure,the proceeds can be divided into five categories.Further research is the existence of controversial benefits,that is,before marriage to obtain intellectual property rights and pre-marital income has been made clear,before marriage to obtain intellectual property rights in the marriage and marriage after the acquisition of intellectual property divorce after the proceeds.Marital acquires intellectual property rights and pre-marital has been clearly made gains,usually the interpretation of the existing law is shared.But this explanation in the legal problems: first,before marriage has been made to obtain the actual marriage,means that only the transformation of the form of property rights;second,and "marriage has been made clear after the divorce of the proceeds for the common property" The rules are contradictory.It should be interpreted as personal property.To discuss the issue of ownership of intellectual property obtained before marriage,the current academic point of view there are common property that personalproperty and the specific circumstances of the specific treatment said.This point of view for the pre-marital property before the acquisition of intellectual property does not exist investment or business behavior,based on the "fruit belongs to the original",the proceeds for the one side of personal property,but if there is investment or business behavior,Which naturally also exist between husband and wife,was the common property of husband and wife.Analysis of marital access to intellectual property rights but has not yet received income on the attribution of the problem.The current academic point of view is expected to say that the common property says that personal property says.According to the current law and nature,belong to personal property,there is no income,so the right to individual,there is no income does not occur attribution.However,such rights are formed during the existence of the relationship between husband and wife,with each other,but belong to the individual,but in dealing with their particularity,can not be simply provided for the individual.Divorce when the copyright and the patent right have not yet earned the attribution to the personal property for the creator of the party.On the one hand because it is not yet achieved gains,it is not income,there is only for the right itself,naturally for personal property.On the other hand to achieve the proceeds of the behavior is in the divorce,naturally there is no co-operation of the situation,so the benefits have not yet obtained for the husband and wife all.For divorce,the trademark has not yet obtained the attribution of income,this paper that does not require special discussion.Because the right itself has been vested in both husband and wife,directly to the right to split,no need to discuss the attribution of income has not yet achieved.The fourth part of the main content of the proposed husband and wife to split the basic principles of intellectual property rights and specific measures.The basic principles of segmentation are fair and one-off principles.The division of copyright and patent rights should be considered whether there is a party's marriage behavior to increase the value of personal property and the spouse of the party's labor value,that is,whether the village "husband and wife" "housework",and give some economic compensation.The determination of the specific amount through the husband and wife to negotiate or find a professional assessment company to solve.In the division of trademark rights,according to the specific circumstances of the trademark to select the division of rights,price division and price compensation for the way to split.