I. Existing legislation and shortcomings
As can be seen from the legislative provisions, trademark law and patent law clearly define the nature of trademark management and patent management in dealing with infringement disputes, and stipulate different legal effects.
When an infringement dispute occurs, the parties may request the administrative organ to handle it. If the administrative organ finds that the infringement is established, it may make a decision to order it to stop. For this decision, both the Patent Law and the Trademark Law clearly stipulate that if a party refuses to accept it, he has the right to bring an administrative lawsuit. In the field of administrative law, this kind of behavior of administrative organs is called administrative ruling, which is a specific administrative behavior of administrative organs. The administrative organ that made the ruling should bear the responsibility of the defendant in administrative litigation.
Second, the administrative organ handling the case can mediate the amount of infringement compensation according to the request of the parties; If mediation fails, the parties may bring a civil lawsuit. Administrative law scholars call this kind of behavior of administrative organs administrative mediation. Administrative mediation is different from administrative adjudication, it is not mandatory, and the administrative organ does not have to bear the defendant's responsibility for its mediation.
Therefore, the revised legislation clearly explains the nature of the administrative organ's handling of civil tort disputes. However, the following problems have not been completely solved.
, leading to confusion in the application of the law. When there is an infringement dispute, if the parties first file a lawsuit with the court to order the infringer to stop the infringement, and the court finds that there is no infringement fact after trial, so the parties reject the lawsuit or lose the case, then the parties still have the right to request the administrative organ to order the infringer to stop the infringement. Due to the complexity and diversity of the actual situation, as well as the differences in the subjective understanding and professional quality of the case handlers, the administrative personnel are likely to make the opposite result to the judge on the same incident. On the other hand, if the parties request administrative relief first, the above situation may also occur. The same case is regulated by the same substantive law, but different organs apply different procedures to solve it, which has different legal consequences and leads to contradictions in the application of the law.
Second, poor jurisdiction. When an infringement dispute occurs, the parties choose administrative remedies, and if the intellectual property management authority considers that the infringement is established after examination, it shall make a decision to order the infringer to stop the infringement. If a party refuses to accept it, he has the right to bring an administrative lawsuit. The parties can also directly choose the civil litigation route to request relief. According to China's current legislation, administrative litigation and civil litigation are completely different in nature, but they solve the same civil dispute. In addition, administrative litigation and civil litigation are usually conducted in different divisions of the same court. Administrative litigation is generally a request to revoke an administrative ruling, while civil litigation is a request for compensation. It is likely that there will be a conflict in which one court finds that there is no infringement and another court determines the amount of infringement compensation.
Third, increase the cost of hearing cases and waste limited social resources. Dealing with civil tort disputes by administrative organs has its advantages, that is, it can stop tort more quickly with simpler procedures, at least it can stop the further expansion of tort. However, according to the current legislation, the administrative organ has no right to force the amount of compensation. After making a determination of infringement, the administrative organ may mediate the amount of compensation applied by the parties. If mediation fails or one party goes back on his word after reaching a mediation agreement, the victim must bring a lawsuit to the court again to make up for his losses, or if the victim foresees that it is impossible for both parties to solve the compensation amount through consultation and wants to stop the infringement immediately, he can take two ways: litigation relief and administrative relief. After accepting the case, the court shall investigate and collect evidence in accordance with the civil procedure, and make a judgment on the amount of compensation after the infringement is established. In this way, the litigation procedure repeats some work in the administrative procedure, which actually increases the trial cost of the case and wastes limited social resources.
Second, suggestions to improve the existing legislation.
In order to solve these problems and give full play to the role of administrative organs in handling civil tort disputes, the author believes that the current legislation should be improved from the following aspects:
(a) to make reasonable provisions on the choice of bringing a lawsuit or requesting a ruling.
Civil tort disputes can be divided into two categories:
First of all, through legislation to clarify the scope of administrative organs to deal with civil tort disputes, determine the statutory principles of intellectual property management organs, and exclude the court's first-instance jurisdiction over specific civil tort disputes. The scope of such disputes must be strictly limited to the scope closely related to the public interest and the administrative functions of the administrative organs. Moreover, this kind of dispute belongs to compulsory jurisdiction, and the administrative organ must accept it if the parties request to deal with it; Otherwise, if the administrative organ refuses to perform its statutory duties, the parties may bring a lawsuit.
Secondly, for other infringement disputes, the parties can freely choose between litigation relief and administrative relief, but they can only choose one. If they choose the former, they cannot choose the latter, and vice versa. If both are selected, it shall be handled by the organ that accepts it first. The handling of such disputes has nothing to do with the administrative functions of the administrative organs, and the administrative organs are completely neutral in resolving disputes between the two sides. Therefore, the parties concerned cannot bring an administrative lawsuit against the administrative organ.
(two) the establishment of specialized agencies responsible for administrative decision-making.
The specialization of administrative adjudication institutions is the basic condition for the existence of administrative adjudication. Without specialized agencies, administrative adjudication is not a mere formality, but it is difficult to ensure the correctness and rationality of adjudication, thus making the existence of administrative adjudication meaningless. On this issue, the British judicial system and the American administrative judge system provide us with good precedents. Both experts in British courts and administrative judges in the United States perform their duties independently and impartially in accordance with the principle of fairness, justice and openness. In China, the patent administration department and the industrial and commercial administration department should also establish relatively independent institutions and improve the procedures for handling civil disputes, so as to ensure the quality of administrative departments in handling civil disputes.
(C) the establishment of post-event prevention mechanism-judicial review
Traditional theory tells us that civil disputes are disputes between equal subjects, and their solution cannot be achieved by coercive means of administrative power. At least the solution of administrative power should not be the final relief, and only judicial power is the power to finally solve civil disputes. If an administrative organ refuses to accept the administrative ruling of a case with jurisdiction of first instance, it may bring an administrative lawsuit to the court. Under normal circumstances, administrative litigation only examines the legality of administrative actions, while in administrative adjudication, because the civil disputes to be resolved by administrative adjudication are originally cases under the jurisdiction of the court, in the trial of such administrative cases, in addition to examining the legality of administrative actions, the legality of handling civil disputes should also be examined. If the effective administrative ruling is not executed, the administrative organ shall apply to the people's court for compulsory execution, and the expenses of the civil dispute shall be paid by the parties. This is one of them. Secondly, for other infringement cases handled by administrative organs, if the parties have evidence to prove the existence of the following circumstances, they can apply to the court for revocation of the administrative ruling: ① the ruling violates legal procedures; The evidence on which the ruling is based is forged; (three) the staff in handling cases of bribery, bribery, favoritism; (four) the application of law is wrong; (five) the parties conceal evidence that may affect judicial justice.