Research On The Issues Of The Enforcement Of Intellectual Property In China

Enforcement is an effective way to ensure that the effective judgment can be realized and also the last line to safeguard social fairness and justice.Enforcement is of great significance to protect the legitimate rights and interests of the parties and establish judicial authority and judicial credibility.The cores and difficulties of enforcement lie in the investigation and control of the property of the person subjected to enforcement.Property is a dynamic category,with the development of the economy,the property system continues to improve,new types of property continue to emerge,the types of property for enforcement are also increasing.In the era of intellectual economy,the value of intellectual property which is a kind of private property right is becoming more and more prominent in economic activities.In the judicial practice,when the person subjected to enforcement has no tangible property,his intellectual property can give hope to the applicant.The enforcement of intellectual property means that the enforcement court takes the intellectual property of the person subjected to enforcement as the object of enforcement then disposes it to realize the applicant's rights.The enforcement of intellectual property helps to solve the difficulties of enforcement arising from the lack of tangible property.At present,China's enforcement of intellectual property is still at the exploratory stage.There are only some very general provisions in some judicial interpretations and regulatory documents issued by the Supreme People's Court.The operating standards of different local courts vary widely,thus the enforcement results vary greatly.The enforcement of intellectual property is the combination of the enforcement system and the intellectual property system.There are many new problems to be solved in the judicial practice.Among these problems,there are four core ones:the first is that the existing provisions are too simple for the enforcement of intellectual property,resulting in a lack of law;the second is the enforcement restrictions on the subjects of enforcement under special conditions,causing enforcement obstruction;the third is the issues of judicial assistance in the enforcement;the fourth is the issues of the disposal of intellectual property during the enforcement.This article takes these four core issues as the research object,and expands as the following five parts.The first part analyzes the theoretical basis and practical requirements for the enforcement of intellectual property.Firstly,defines the subject of enforcement and its scope.Secondly,analyzes the theoretical legitimacy of the enforcement of intellectual property,proposing that the enforcement of intellectual property is feasible,legitimate and also has some limitations.Finally,analyzes the practical necessities of strengthening the enforcement of intellectual property in China,proposing that strengthening the enforcement of intellectual property is the need for the development of the times and the enforcement practice,then bring up the core issues of the enforcement of intellectual property.The second part analyzes the lack of the law of the enforcement.Firstly,sorts out China's existing regulations of the enforcement of intellectual property.Secondly,analyzes the simplicity and conflict of the existing regulations.Finally,proposes making uniform regulations of the enforcement of intellectual property,confirming its legitimacy throungh the law and making thorough procedures in the judicial interpretations.The third part analyzes the enforcement restrictions on the subjects of enforcement under special conditions.Firstly,analyzes the enforcement restrictions on the shared intellectual property,proposing in the specific enforcement process refering to the regulations of the co-ownership in "Property Law":one is that the shared intellectual property can be executed;the other is to pay attention to the distinctions of the enforcement between several co-ownership and joint co-ownership intellectual property;the last is to give the co-owners priority in purchasing the intellectual property.Secondly,analyzes the enforcement restrictions on the intellectual property with some executory contracts:one is to define the meaning of the executory contracts,the other is to analyze the executory contracts and the prior license contracts,the last is to analyze the application of the principle of unbroken license in the transfer of intellectual property under different situations.The fourth part analyzes the issues of judicial assistance in the enforcement.Firstly,analyzes the existing departments that can offer judicial assistance in the enforcement of intellectual property.Secondly,proposes the dilemma of judicial assistance in the investigation and control of intellectual property is the lack of a unified investigation system and an effective control system.Finally,proposes establishing a unified investigation and control system of intellectual property and interfacing the system with the investigation and control system in the enforcement procedure.The fifth part analyzes the issues of the disposal of intellectual property during the enforcement.Firstly,proposes that making online judicial auctions of intellectual property is the main disposal method,then analyzes the statistical data.Secondly,proposes that the existing disposal lacks professional platforms and diversified approaches:one is to analyze the effectiveness of the existing judicial disposal platform and point out its lack of professionalism,the other is to analyze the main intellectual property disposal approaches that focus on forced auctions and sell-offs and point out their lack of diversity.Finally,proposes ways to improve the efficiency of the disposal of intellectual property:one is to strengthen the professional construction of the judicial disposal platform,and the other is to allow conditional use of the intellectual property.