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| 文件名称： | Trial and Judgement of Intellectual Property Cases in China.doc |
| 所属大类： | 论文集锦 |
| 行业分类： | M:科学研究、技术服务和地质勘查业 |
| 生效日期： | 2006-09-26 00:00:00 |
| 文件星级： | ★ |
| 文件字数： | 28920 |
| 文件页数： | 21 |
| 文件图表： | 0 |
| 资料语言： | 中文 |
| 文件大小： | 75KB |
| 文件简介： | Trial and Judgement of Intellectual Property Cases in China 周林 Introduction It was in the Chinese-Foreign Joint Venture Law, which was passed and implemented in July 1979, that intellectual property was introduced for the first time in the law since the founding of the Republic of China.?Hereafter, the Trademark Law (1982), the Patent Law (March 1984) and the Copyright Law (1990) were passed, and the country saw a comprehensive protection of intellectual property only since then. In 1993, Beijing courts were the first to set up intellectual property tribunals in the intermediate and high people’s courts. Soon afterwards, other provinces followed suit as courts in Shanghai, Tianjin, Guangdong and Jiangsu, also set up special tribunals to try intellectual property cases. Today, this kind of tribunal has been classified into the third civil tribunal due to a re-organization ordered by the Supreme People’s Court. Prior to 1993, intellectual property cases were accepted and heard by civil tribunals (mainly those of copyright disputes) and economic tribunals (mainly those of trademark right and patent disputes) of the people’s courts. According to the Supreme People’s Court’s revised thinking on “large civil” judicial form②, since 1993, intellectual property tribunals, which met the need of trial of IPR were incorporated into civil tribunals again and assigned to accept and hear IP civil cases alone. Administrative and criminal cases concerned with intellectual property were accepted and heard by administrative and criminal tribunals, respectively③. The benefits such “reforms” is still difficult to judge now and its discussion is outside the scope of this article. The first national working conference on reforming the trying style since foundation of the PRC was held in July 1996. In June 1998, “Certain Regulations of the Supreme People’s Court on Reform of Civil and Economic Trying Style” (hereafter called “Certain Regulations”) was issued. In October 1999, the Supreme People’s Court issued “Five-year Program of Reform of the People’s Courts” (hereafter called “Five-year Program”). Such reform is obviously necessary. Experts have pointed out that, at least in the field of civil jurisdiction, not only China, but also many countries and regions in the world are carrying on powerful and dynamic reform almost simultaneously.?The goal pursued by these reforms (internal motive force) lies in seeking realization of the just.? In recent years, reform of civil trying style in China mainly focuses on the following four aspects: adhere to open hearing; strengthen the function of court hearings; strengthen the liability of the parties to provide evidence and strengthen the duty of the collegial penal or the single judge.? 1 Reform of the trying style of intellectual property cases is a component part of the above-mentioned reforms. Some of judges who try intellectual property cases and were contacted by the author are enthusiastic for this reform with high aspiration. Thanks to their support, a series of documents aimed at regulating trial have appeared.… Documents include Certain Opinions on Reform of Trying Intellectual Property Cases and Certain Opinions on Standards of Sending Back for Retrial and Amending a Judgement issued by the High People’s Court of Beijing Municipality, the Rules of Evidence and the Rules of the Collegial Penal Discussing Cases by the Second Intermediate People’s Court of Beijing Municipality and the Notice on Appearing in Court by the Second Intermediate People’s Court of Shanghai Municipality. These documents are good examples of the kind of characteristics found in trying intellectual property cases and play a good role in regulating trials of intellectual property cases in the courts under their jurisdiction. This article will describe, analyze and comment on the trial and judgment of intellectual property cases in China and put forward the author’s own opinions and proposals in the light of judicial interpretations of the Supreme People’s Court on reform of civil trying style and documents of local people’s courts on trial of intellectual property cases. 1. Trial of intellectual property case: from putting on file to winding up (1) Putting a case on file Like any other kind of civil cases, the parties of intellectual property cases who bring a lawsuit to the people’s court pursuing resolution of disputes m |
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