1. What is the relationship between intellectual property law and civil law
1. As Law, intellectual property law and civil and commercial law have certain similarities or similarities.
2. For intellectual property law and civil and commercial law, the differences outweigh the commonalities. The difference between the two is obvious.
2.The commonalities between intellectual property law and civil law
1) Both laws use property interests and personal interests as levers, and rights and obligations as means to adjust social relations; in specific legal norms, they both focus on confirming and protecting rights.
2) In intellectual property law, when a rights holder licenses others to use or transfers his rights, the rights and obligations relationship with others will become a general Civil legal relations will be handled according to the principles of debt and contract. This phenomenon can be seen as the intersection of intellectual property law and civil and commercial law.
2. The difference between the two laws
1. The value trends of the two types of legislation are different
For civil and commercial law, the legislative PurposeIt lies in protecting the civil rights and interests of citizens, legal persons and other organizations in accordance with the law and correctly adjusting civil legal relations. The foothold of legislation is to fully safeguard the legitimate personal interests of citizens, legal persons and other organizations, rather than focusing on the public interests of the country and society. Within the scope permitted by civil law, the freedom of citizens, legal persons and other organizations to dispose of and use their rights in accordance with the law is fully respected, and the state should not intervene, or can only intervene in a limited way. Here, the state is just a referee and organizer who exercises rights in principle, and is not an athlete directly involved in specific matters. As for intellectual property law, the purpose of legislation is to safeguard and realize the public interests of the entire society or all mankind. In order to achieve this purpose, the rights and interests of intellectual property rights holders must be confirmed and protected in accordance with the law. Furthermore, intellectual property law does not simply aim at protecting and realizing the interests of intellectual property rights holders. Confirming and protecting the interests of intellectual property rights holders is only a bridge and means to realize social and public interests. From this perspective, fully protecting the legitimate rights and interests of citizens, legal persons and other organizations is the first priority in civil and commercial law and is the ultimate goal of legislation. In the intellectual property law, although the protection of the legal rights of the obligee is directly advocated, in general, the protection is based on the first limitation of the rights of the obligee. Therefore, in fact, the rights of the obligee are the second. Secondary; the first goal is to ensure the public interests of society. When personal interests conflict with public interests, personal interests are required to be sacrificed or restricted to meet the needs of public interests. For this reason, in intellectual property law, the state often acts as both organizer, referee and athlete.
2. The structures of the two legislations are different
For civil and commercial law, the main specific tasks It can be summarized as three. The first is the confirmation of rights, which is equivalent to the property rights system and the personal rights system; the second is the regulation of the use of rights, which is equivalent to the debt and contract system; the third is the protection of rights, which is equivalent to the civil liability system. Among these three specific tasks, the regulation of the use of rights is the main content, because in the entire civil and commercial legal system, the regulation of transactions and the observance of transaction rules are the central content. For example, the Civil and Commercial Law lists the principle of good faith as its own imperial clause, which itself illustrates the importance of transaction relationships in the Civil and Commercial Law. Civil and commercial law focuses on transactions and circulation. For intellectual property law, the situation is very different. The main issues to be solved by intellectual property law are the recognition, regulation and protection of intellectual property rights. The transaction and use of rights are not the focus of intellectual property law. On the contrary, in the transaction and use of rights, intellectual property law advocates that the transaction and use of rights should be handled in accordance with the "Contract Law" in the civil law, but the joint links should be supervised in accordance with the law. For example, a patent transfer contract must be announced by the Patent Office before it can take effect. Generally speaking, on this issue, apart from individual restrictions and procedural requirements, intellectual property lawIn addition to claims, the system of obligations and contracts in civil and commercial law basically applies, which can be regarded as the intersection of the two laws.
3. The attributes of the two laws are different
Civil and commercial law belongs to private law, but intellectual property law It is not obviously a private law. In fact, it is more of a public law. It is a conditional protection of private interests on the premise of safeguarding the public interests of the country and society. For some specific intellectual property rights, according to the needs of the country and society, the country and society can share them with the right holders, such as fair use, compulsory license, some exceptions that are not considered to constitute infringement, etc. Although intellectual property rights are classified as private rights in the Trips Agreement, we cannot therefore say that intellectual property law is private law. If a large number of such laws stipulate the use of private rights for the public interest, then this kind of Law is different from private law in the general sense, so we cannot simply define it as private law. Moreover, the concept of private rights in the Trips Agreement is not exactly the same as the concept of private rights in my country's civil and commercial law.
In fact, compared with the characteristics of private law represented by my country’s civil and commercial law, intellectual property law has more characteristics of public law. In practical applications, economic law often divides industrial property law and other contents into its own legal system; in international economic law, it often directly treats intellectual property law as part of its own system. The occurrence of these situations shows from one aspect that the state's management and arrangement of rights in accordance with the law is a large part of intellectual property law, just like the state's regulation and management of the economy in accordance with the law in economic law. In our country, the difference between economic law and civil and commercial law is basically clear. From this point of view, if we divide it from the proportion of legal protection of public interests and private interests, intellectual property law actually has the characteristics of both public law and private law, and the proportion of public law is heavier. This is obviously different from civil and commercial law.
4. There are big differences in the content of the two laws
Civil and commercial law is mainly substantive law. In addition to the substantive provisions on rights, intellectual property law also contains a large number of procedural provisions, which can be said to be a combination of substantive law and procedural law. Of course, the procedural law here refers to the procedures for obtaining and protecting intellectual property rights in accordance with the law.
Secondly, most of the provisions in intellectual property law are mandatory provisions, and everyone, including rights holders, must abide by and implement them unconditionally. In intellectual property law, individual freedom of will and personal choice are not advocated in terms of the acquisition and protection conditions of rights, and it is even less possible to comply with a person's personal wishes. Even in the use and transfer of rights, althoughAlthough the right holder is allowed to exercise the right of use and disposal by signing an agreement with others, it also imposes restrictions on the type of rights that can be transferred and the method of transfer, which the right holder must abide by. For example, personal rights are not transferable, and some rights cannot even be inherited. This is very different from the legislative spirit of civil and commercial law and the practice of respecting individual wishes. It is not a value trend at all.
5. The way in which responsibility arises is different from the responsibility assumed.
For civil and commercial law, the main ways of generating liability are breach of contract and tort, among which breach of contract is the main one, because liability for breach of contract arises in the transaction process and belongs to the civil The main content of commercial law. For liability for breach of contract, the parties only bear civil liability. Regarding tort liability, as for the way to bear liability, the Civil and Commercial Law only stipulates the civil liability part of liability. If the tortfeasor causes serious injury and loss to others' personal and property during the infringement, it involves criminal crimes. , then it is handled separately by criminal law and no longer falls within the scope of civil and commercial law, that is, administrative and criminal liability are not included in civil and commercial law. Different from this, for intellectual property law, although there are also two forms of liability: tort liability and breach of contract liability, the intellectual property law only stipulates tort liability. In the section on the use and transfer of rights, since it is an intersection with the Civil and Commercial Law, it is handled directly according to the liability for breach of contract in the Civil and Commercial Law, and there is no other provision. In tort liability, three forms of liability are stipulated: civil, administrative and criminal. The scope and degree of use of these three forms are different, and they can generally be divided into the following situations:
⑴ Only bear civil liability;
⑵ Only bear administrative liability;
⑶ Bear both civil liability and administrative liability;
⑷ Bear both civil liability and criminal liability.
These situations are all specifically applied in practice. In contrast, the first situation is used to a higher extent. The different provisions on liability in intellectual property law and civil and commercial law are essentially reflections of the different attributes of rights in the two laws. As private rights and private law, it is appropriate for civil and commercial law to tightly limit the way to bear responsibility within the scope of civil liability. As for intellectual property law, since intellectual property rights are not simply private rights, intellectual property law is not simply private law either. It can even be considered a semi-public and semi-private law. This should definitely be reflected in the way we assume responsibility. There is a difference, which is reasonable and reflects the difference between the two laws.
In short, the difference between intellectual property law and civil and commercial law is very significant. The similarities between the two are only limited intersections between the two laws. The differences and differences account for the main part. Therefore, we The two laws cannot simply be lumped together.
