The Study Of The Ownership Of Intellectual Property In Matrimonial Property System

Currently,the legal provisions on tangible property in China's marriage system already have a maturity,scientific and fair marriage property system,and could fully guarantee the tangible property of the parties in the marriage.However,the intellectual property rights,as a product of civil rights for modern society,have the characteristics of duality,intangibility and uncertainty of personal rights and property rights.Compared with tangible property,intellectual property have a lot of differences,they have many essential differences.According to Article 17 of the Marriage Law of the People's Republic of China,the scope of property during the duration of the relationship between husband and wife,wages,bonuses,income from production and operation,income from intellectual property rights,inheritance or gift of property,etc.shall be jointly owned by the husband and wife.It can be seen that the income of intellectual property has been regarded as one of the statutory matrimonial property types,indicating its importance as a joint property of husband and wife.In accordance with China's current "Marriage Law" and judicial interpretation,in the identification of the attribution of intellectual property rights,taking into account the indivisible characteristics of intellectual property,and the factors that are conducive to the transformation of intellectual property rights,the intellectual property belongs to the creator.It is indeed conducive to motivating creators to focus on the enthusiasm of invention creation,where there is rationality,and there are many shortcomings.In practice,intellectual property disputes are particularly complicated.Different intellectual property types such as copyright,invention and creation,trademark rights,and income have time differences.The concept of property rights and economic interests in intellectual property are different.The request was divided,the intellectual property rights were affected by the rights and obligations after the infringement,and the Marriage Law did not make clear provisions,and the concept of vagueness was lacking in guidance.The Marriage Law has a lag in the legal provisions on intellectual property rights.It is not suitable for the current diversified changes in the structure of matrimonial property and needs to be re-adjusted.Therefore,in order to solve the current legal problems involving the attribution of intellectual property rights and the division of income in divorce disputes,it is urgent to further clarify and improve relevant laws and regulations.As a legal worker,combined with practical work experience,I try to explore the attribution methods and standards of intellectual property rights in marriage relations from the aspects of legal defects in the property system of the Marriage Law,the types,characteristics and methods of obtaining intellectual property rights.And research.Intellectual property is the right to establish a specific intellectual achievement.It has the dual attributes of property and personality.The object of intellectual property protection has the characteristics of intangibility,the time of intellectual property acquisition or the uncertainty of property income.It leads to the attribution of intellectual property and the division of income into difficult and complicated problems in marital property disputes.Regarding the issue of the attribution and benefits of intellectual property rights,there is also debate on this issue in the academic and practical trials.In academic circles,the ownership of intellectual property can be mainly divided into "the theory of community property of husband and wife of intellectual property" and "the theory of individual property of intellectual property".I more agree with common property of husband and wife say "intellectual property",and in the article detailed rebuttal common property of husband and wife say "intellectual property" of the three common negative point of view,and with the help of "presumption of implied" to complete the joint property of husband and wife say "intellectual property" intrinsic logical support and joint property of husband and wife say "intellectual property" in accordance with the demonstration of the idea of equal protection property.This paper finally completes the determination of the division rules of intellectual property income in divorce proceedings,puts forward five basic principles,and expounds the personal opinions of the division rules.First,establish and improve the general principles that need to be followed in determining the attribution of intellectual property rights,such as the principle of separation of personal rights and property rights of intellectual property rights,the principle of proportional division,the principle of unification of rights and obligations,and the principle of distribution of spouse contributions.Secondly,according to different stages of intellectual property rights,it is divided into three different situations: the income generated by marriage before marriage,the income generated by marriage,the gain of marriage within the marriage,the income generated by marriage,and the income obtained by marriage.According to the time point of obtaining intellectual property rights,combined with the differences in intellectual property types,the origin of intellectual property rights can be clearly traced,and the attribution of intellectual property rights can be effectively identified.Finally,under the premise of determining the attribution of intellectual property rights,it is determined that the income belongs to the joint property of the husband and wife or the personal property,and the problem of dividing the intellectual property income is solved.For example: intellectual property acquired before marriage,when divorce,it can be clarified that the intellectual property rights belong to the intellectual property person.The income during the marriage period belongs to the joint property of the husband and wife.The intellectual property income before and after the marriage belongs to the intellectual property person;the income during the existence period is divided into the income Active value-added or passive value-added,distinguishing between husband and wife joint property income or personal property.From the legislation of China's "Marriage Law",it only stipulates the attribution of intellectual property rights,pays too much attention to the protection of intellectual property rights,and ignores the characteristics that intellectual property rights can be divided,as well as the intellectual property rights obtained in different time periods,and also affects their rights.The affiliation and other issues have led to a lot of legacy issues of intellectual property rights,which have not been effectively dealt with,so that there is a lack of fair treatment for the protection of property rights of non-IPR persons.To this end,I tried to analyze the issue of intellectual property attribution and revenue division in the Marriage Law,and proposed suggestions and solutions for protecting the property rights of intellectual property creators and spouses,so as to improve the protection of intellectual property legislation in the Marriage Law in the future.