□ Legal Daily reporter Zhu Ningning
The structural style is the focus of the preliminary examination of the draft of each division of the Civil Code. The draft of each division of the Civil Code submitted for deliberation this time consists of six parts, in order of real right, contract, personality right, marriage and family, inheritance and tort liability. It does not include intellectual property rights.
In this regard, Shen Chunyao, director of the the National People’s Congress Standing Committee (NPCSC) Law Committee, gave two reasons when explaining the draft to the Standing Committee: First, China’s intellectual property legislation has always adopted the civil special law, such as the patent law, the trademark law, the copyright law, and other laws and administrative regulations such as the anti-unfair competition law, the regulations on the protection of layout-designs of integrated circuits, and the regulations on the protection of new plant varieties. China’s intellectual property legislation not only provides for civil rights and other contents, but also provides for administrative management and other contents, which is generally consistent and connected with relevant international treaties. The Civil Code is a law to adjust the civil legal relationship between equal civil subjects, and it is difficult to incorporate the administrative content and abstract the general rules of different types of intellectual property rights. Second, the intellectual property system is still in rapid development and changes, and domestic legislation, law enforcement and justice need to be constantly adjusted and adapted. If the legal norms of intellectual property rights are incorporated into the civil code now, I am afraid it will be difficult to maintain its continuity and stability.
It is understood that there has been controversy about whether to set up an intellectual property code since the formulation of the civil law in 2001. In more than 1,200 drafts submitted to the Standing Committee for deliberation in 2002, intellectual property rights were not included. The debate on this issue has continued to this day.
Is this part of intellectual property included in the civil code or not? During this group deliberation, many members of the Standing Committee expressed different views and suggested further in-depth analysis and serious study on whether to set up an intellectual property department.
It is suggested to seriously study the independent compilation of intellectual property rights
During the deliberation, some members of the Standing Committee thought that further study was needed on the fact that intellectual property rights were not included in the Civil Code, and it was suggested that they should be incorporated into the Code separately.
"Intellectual property requires government confirmation and administrative protection, but it cannot be denied its civil rights attribute because of such confirmation and protection, nor can it be a reason for not entering the code because of the existence of administrative power." Commissioner Xu Xianming pointed out that when intellectual property rights become a universal civil right, the more specific the right, the more actionable it is, and the more effectively it can be protected. In this sense, the codification of intellectual property rights into the Civil Code is much better than the current method of administrative protection. "The times require us to codify intellectual property rights. Our country has developed to this extent, and our concepts should keep up with the pace of this era."
"In a sense, this can force our enterprises to accelerate the pace of independent innovation." Member Zuo Zhongyi’s reason is that now is the era of knowledge economy, and innovation has become the main driving force of social progress and economic development, and legal norms are especially needed to protect intellectual property rights and encourage and support innovation. In addition, it is also conducive to attracting and retaining talents in the increasingly fierce international talent competition.
Commissioner Chen Sixi said that it should be possible to clearly stipulate the intellectual property rights in the civil code and to include some basic contents of intellectual property rights. If this cannot be done, it is hard to say that our civil code can lead the world and lead the future. In his view, neither of the two reasons given in the draft explanation makes sense. "First of all. All our civil rights protection involves the state, including the protection of administrative organs and judicial protection. Secondly, many contents in the current cataloguing articles also involve administrative norms, and it is unreasonable to exclude intellectual property from civil law just because it involves administrative management. "
"Intellectual property rights are an important part of national competitiveness and an important part of civil law that needs to be standardized. Especially in the process of globalization of the world economy, intellectual property rights in many countries have formed a very complete legal system. At present, a considerable part of international business activities or other exchange activities involve intellectual property related content. " Member Xiong Qunli suggested that the intellectual property law be included in the civil code as soon as possible.
Wang Junfeng, a member of the Constitution and Law Committee of the National People’s Congress, believes that it is natural and necessary to include intellectual property law in the Civil Code. "Many countries in the world had the content of intellectual property rights in their civil codes two or three hundred years ago. Today’s code ignores this content, which is also inconsistent with the implementation of a series of policies and guidelines for the protection of intellectual property rights proposed by the CPC Central Committee. Any property right or civil relationship has administrative aspects, which can be discussed. "
Committee member Liu Jixing suggested that the establishment of an intellectual property department should be carefully studied, mainly for the following reasons: First, with the development and progress of society, intellectual property disputes have become more and more prominent, and the civil code must respond to this problem. Second, at present, China has a good experience, practice and legislative basis, intellectual property rights have a separate law, and court application has also formed a good experience, which has the basis for inclusion in the civil code. Third, since China’s reform and opening up, it has joined the World Trade Organization, and now the economy is going global. This time, the compilation of the Civil Code should consider the issue of intellectual property protection politically.
Conducive to establishing the image of China’s intellectual property power.
"In the early days of reform and opening up, China used more administrative means to protect it in the case of insufficient judicial protection capacity. At present, it still adopts the system of dual protection of administrative management and judicial management, and a large number of administrative regulations are not convenient to enter the civil code, which is an equal subject. This is a status quo. But this situation is exactly what we need to keep pace with the times and move forward to change it. " One of Jason. JS’s core viewpoints is that the basic nature of intellectual property rights should be private rights. He said that after decades of development, China’s intellectual property laws and regulations have been continuously improved, the ranks of intellectual property researchers have been growing, the ranks of intellectual property judicial personnel have been growing, a number of specialized intellectual property courts have been established, and the number of specialized lawyers in intellectual property has been increasing.
"From now on, it is completely at the stage of returning the essential attributes of private rights of intellectual property rights, gradually strengthening the judicial protection of intellectual property rights, diluting or even withdrawing from administrative intervention and so-called administrative protection in some fields." Jason. JS believes that the conditions are basically met for putting intellectual property rights into the intellectual property rights compilation and highlighting the judicial nature of equal civil subjects of intellectual property rights.
Jason. JS said: "Of course, it is not excluded that some new areas and new things will be introduced, and some new transitional administrative individual laws and regulations with administrative management and administrative promotion will be introduced, but the core part should be the judicial protection of equal civil legal subjects, which is just an opportunity, so intellectual property rights should be added to the Civil Code."
"According to the 2018 Global Innovation Index compiled by the World Intellectual Property Organization, China has entered the top 20, ranking 17th. This is the first developing country to enter the top 20. Therefore, it is urgent to improve the intellectual property system, strengthen intellectual property protection and improve the competitiveness of the industry. " Commissioner Lv Wei said that intellectual property rights are important civil rights. Except for a few countries, most countries have incorporated intellectual property laws into their civil codes. In addition, this move is also conducive to strengthening the implementation of the intellectual property system. At present, some countries have included the capitalization of intellectual property rights and R&D expenditures in GDP statistics. Now, the inclusion of intellectual property rights in the civil code is conducive to winning the initiative in the international arena.
"The compilation of the Civil Code in China is not only to solve the problem of China, but also of world significance. I think it is of great significance to write the intellectual property law into the civil code, which deserves serious consideration. " Commissioner Feng Jun said that the French Civil Code influenced the world in the early 19th century, and the German Civil Code also influenced the world in the early 20th century. The most influential civil code in the 21st century is our civil code. How it will undertake its own mission and make what kind of innovations that can represent the times and lead the trend is a question to be seriously considered and answered. If compiling a civil code only makes up the course and formally solves the problems of our civil code, I’m afraid the positioning and standing position will be relatively low.
There is a path for the legislative technology of independent compilation of intellectual property rights
According to the draft, one of the reasons why this edition of intellectual property rights has not been included is that the intellectual property system is still in rapid development and changes, and domestic legislation, law enforcement and justice need to be constantly adjusted and adapted. If the legal norms of intellectual property rights are incorporated into the civil code now, it may be difficult to maintain its continuity and stability. In this regard, some members of the Standing Committee have given some methods from the legislative technology.
"Based on systematic reasons, we should not exclude a civil rule of intellectual property rights that conforms to civil rules and the essential content of property law from the civil code." In the view of the members of Xian Tieke, the advantage of adjusting civil relations in intellectual property rights under a unified civil law system is that we can learn a code and obtain relevant rules at one time, and the cost of living, production and trade will be greatly reduced. The highest criterion of economic activities is high efficiency and low cost. In terms of legislative technology, it is suggested that the technical problems of intellectual property rights being incorporated into the civil code should be solved in a relatively centralized way. Specifically, on the one hand, we can consider compiling the exclusive part of intellectual property separately, and some others, such as intellectual property transfer, intellectual property inheritance and intellectual property tort liability, can be reflected in some related contents of the Civil Code accordingly. On the other hand, the contract, inheritance and tort liability in the civil code can be reflected in intellectual property rights.
After analyzing the historical dimension, international vision and practical feasibility, Commissioner Jing Hanchao pointed out that from a more macro perspective, the advantages of including intellectual property rights in the Civil Code outweigh the disadvantages. Talking about how to enter the "Code", he believes that the legislative technology can make a modification, not including the contents of administrative legal relations in the current patent law, trademark law and copyright law, and specifically revising and formulating administrative laws, but only including the contents involving civil legal relations and making them into a series.
Commissioner Chen Fuli also called for further consideration of the possibility of including intellectual property rights on the basis of the existing six divisions. At present, it is necessary to further study the scientific and reasonable coordination of the "dual track system" of administrative protection and judicial protection, and how to further strengthen intellectual property protection. "In the face of the emphasis of developed intellectual property powers on stricter intellectual property protection, we need to study how to better adapt the level of intellectual property protection to the level of national economic and social development."
The rapid development and change need frequent revision, so it is not appropriate to enter the "code"
During the deliberation, some members of the Standing Committee thought that the current draft format was reasonable, and it was not appropriate to compile the intellectual property separately for the time being.
Member Zheng Shuna believes that the particularity of intellectual property rights should be considered. First of all, intellectual property is a kind of right which is based on spiritual products and created through human wisdom. The rights of copyright, patent right and trademark right are currently regulated by three laws. There are differences among them. Copyright is closely related to identity, while patent right is different from trademark right, and its acquisition requires the administrative organ to confirm the right. Secondly, the development and changes of the intellectual property system are frequent and need to be revised frequently according to the changes and developments of the situation. It is a better choice that legislation as a special law can be modified at any time. In addition, judging from the current national regulations with civil codes, most countries have not written them in, and France, Germany, Spain and Japan all protect them as separate laws and special laws.
Member Wang Chaoying also thinks that the compilation of intellectual property rights cannot be compiled separately. In his view, whether intellectual property rights can be compiled or incorporated into the general principles of civil law has four principles, namely universality, stability, consistency and agreement. However, the object of intellectual property itself is very complicated, and the means of protection are also very complicated and different. It is difficult to abstract and generalize intellectual property rights into general rules, and the legal system of intellectual property protection has developed very fast and changed greatly in the world, especially in the era of digital economy, and the change may be faster and greater. Over the years, China’s intellectual property legislation has been constantly improved with the progress of international legislation, and it is really difficult to turn these contents into very stable provisions as a part. From the 1980s to the present, the Trademark Law, Copyright Law and Patent Law have been revised about nine times, which is still very frequent. The civil code should pay attention to stability, and frequent revision is a problem.
"Of course, if the legal system of intellectual property rights is stabilized after repeated practice in the future, we will consider whether to put it in the civil code at that time, or we can study it again." Wang Chaoying said.