Wu
Modern civil code is reformed on the basis of Roman law system, and there is no historical opportunity between intellectual property legislation and modern civil code. Modern civil code compilation movement tried to accept the intellectual property system, but so far there has been no successful legislative case. Contemporary intellectual property law is a comprehensive, open and most innovative legal norm system, and it is more appropriate to adopt the style of civil special law.
The relationship between intellectual property system and future civil code has always been a controversial issue. Many civil law scholars advocate the integration of property rights system including intellectual property rights within the framework of civil code. The reason is that the protection of intellectual property rights is basically civil, and this right should be treated equally with other property rights and regulated in the civil code. There have been legislative cases in foreign countries that stipulate intellectual property rights in the civil code. China's General Principles of Civil Law stipulates various intellectual property rights in the section of "Civil Rights", so this system should become an integral part of the Civil Code. The author has different views on this. This paper attempts to explore the relationship between the legislative style of intellectual property rights and the compilation of civil code from the perspective of historical investigation and current situation analysis, in order to provide some useful ideological materials for the design of civil code system.
Missed: Compilation of Modern Civil Code and Generation of Intellectual Property System
With the establishment of the capitalist system in the west, major capitalist countries began the legislative activities of intellectual property rights from the 18 and 19 centuries. Among them, the most representative legislative examples are: American federal copyright law 1790, French law on authors' rights 1793, German law on protecting owners of scientific and artistic works from being copied or imitated 1837, and Japanese copyright law 1899. Patent laws issued by USA 1790, France 179 1, Germany 1877 and Japan 1885; Trademark laws promulgated by Britain 1875, America 1870, Germany 1874 and Japan 1884. There is no historical opportunity for these intellectual property legislation and the compilation of modern civil code.
Whether in Britain or the United States, intellectual property law is in the form of statute law, and has always been an independent property legal system, which does not involve the compilation of civil code. Civil law countries inherited the codification tradition of ancient Rome. As a modern paradigm, the French Civil Code and the German Civil Code were compiled in the early and late19th century respectively, and their civil code systems are based on the "legal ladder" or "theoretical collection" of Roman law. Its intellectual property legislation was generally ready long before the compilation of the civil code, and most of these emerging property rights systems were "introduced" from Britain. Therefore, the paradigm civil code of modern European continent failed to incorporate the intellectual property system into its system. As for its legislative motive, it can be explained from the following aspects.
1. The modern intellectual property system is the product of the evolution from privilege to private right.
The birth of modern intellectual property law has experienced the long-term pain of feudal franchise system for nearly 300 years. Feudal concessions related to the protection of spiritual products, including printing exclusive rights and product concessions, granted exclusive publishing licenses to printers or gave operators the right to produce and sell certain products in the form of decrees or writs. The beneficiaries of this feudal licensing system are mainly printers, business owners and licensing rulers, rather than authors or inventors engaged in intellectual creation activities. This system not only meets the needs of feudal rulers to imprison ideology and culture and control economic interests, but also determines the regional characteristics of original intellectual property rights. The significance of feudal franchise lies in its historical connection with modern intellectual property system. The legislation of modern bourgeois countries made intellectual property enter the field of private law from public law, and changed from privilege to private right. While the legal system has undergone qualitative changes, it also retains a certain historical inertia, that is, most intellectual property rights have the characteristics granted by the state. There is no contradiction between the state granting this right and the origin of the right. American scholars believe that creative activities are the "source" of intellectual property, while national laws and regulations are the "origin" of intellectual property, so intellectual property is a legal, limited and exclusive right. The social background of intellectual property system is different from the private law environment existing in traditional property law, so modern legislators adopt different methods in the design and arrangement of legal system. From privilege to private right, it reflects the attribute change of modern intellectual property rights, but it does not mean that intellectual property rights and other property rights adopt the same legislative form.
2. The modern intellectual property system is the result of the "immaterialization revolution" of property in the field of private rights.
In the Roman private law system, the property right system is a kind of property right structure system. Based on the knowledge that the main composition of property is limited to tangible things, the Romans constructed a system of property and real right. They take things as the object category (mainly tangible objects-tangible things, but also intangible system products, that is, property rights other than ownership-intangible things), and on this basis, they designed a property rights system with ownership as the core and established a "property law" system with property rights and creditor's rights as the main contents. With the development of modern commodity economy, the so-called abstract and intangible property types have appeared in the composition of social property. "Intellectual property" with knowledge, technology and information as its main content is different from movable property and immovable property in the previous material form, and it is a substitute different from the traditional sense. Hegel wrote in the book Principles of Philosophy of Right: such as spiritual skills, scientific knowledge, art and invention. , can be used as the object of the contract and regarded as the same as what is recognized in the business. Although this kind of possession can be traded and contracted like things, it is also an internal spiritual thing. Obviously, the traditional materialized property rights structure cannot contain abstract and intangible intellectual property rights. 1807 French civil code inherits and develops the tradition of Roman law, divides objects into tangible and intangible, and expands the scope of intangible. The latter refers to the rights with property content, among which, in addition to the creditor's rights and equity stipulated in the Civil Code, it also includes emerging intellectual property rights. Intellectual property was originally classified as a dynamic product, and later it was classified as a more important real estate category. 1896 the german civil code has formed its own german national style in inheriting the tradition of Roman law. Its legislative documents do not recognize intangible things, and the so-called things only involve the concept of tangible things. But in theory, knowledge products can be called "intangible things", but they can't be classified as the object of property law, but only the object of intellectual property law.
In a word, the establishment of intellectual property system is a profound institutional innovation and change in the field of property rights since Roman law. Whether it is the "ladder system of law" (French law) or the "socialist codification system" (German law), it is only a transformation based on the codification of Roman law, and the new property right system of intellectual property rights has not entered the category of the traditional civil code system.
3. The modern intellectual property system has not yet formed a systematic property group.
Intellectual property rights are the rights that people enjoy according to law based on the achievements created by their own intellectual activities and the marks and reputations in their management activities. It is a relatively independent property right system and belongs to the category of civil law. It was first seen by French scholar Kaptsov in the middle of17th century, and later developed by Belgian jurist Piccadilly in19th century. Piccadilly believes that intellectual property is a special category of rights, which is essentially different from the ownership of things. In the modern legal period, the systematization of the right system in the name of intellectual property rights has not been realized in legislative activities. In other words, "intellectual property law is the general name of patent law, trademark law, copyright law and other legal norms. This term is nominal and a theoretical summary. " From the middle of17th century to19th century, the intellectual property system in modern Europe rose. Patent law, copyright law and trademark law have appeared in western countries. Without exception, the above-mentioned laws all appear in the form of separate legislation, and there is neither a unified intellectual property code nor the integration of various laws into the civil code. The French Civil Code 1804 clearly affirmed that trademark rights should be protected like other property rights. This provision is only the civil positioning of trademark right as property right, and has no legislative significance in the civil code. It is under the guidance of the Basic Law of the Civil Code that France promulgated the trademark law with historical significance and international influence in 1857. Needless to say, from the legislative point of view, it is undoubtedly difficult to systematically integrate all kinds of intellectual property rights into a part of the civil code. In this regard, French scholars pointed out that "in most cases, tangible property is placed in a single system of legal rules as a whole to adjust." For example, when it comes to tangible real estate or movable property, ownership always has the same content. It is true that the status of two different kinds of property is not always the same, but this does not deny the existence of some rich general rules of tangible property ownership "; "On the contrary, intangible property has different attributes. They cannot be placed in the same legal system, but can only be placed in a series of independent and different systems and exist for a certain period of time. " It can be said that due to the technical reasons of civil legislation, modern legislators have not integrated patent, copyright and trademark rights into a universal and unified intellectual property system like building a property rights system.
The compilation of modern civil code is naturally called "Rome of words". Property rights, creditor's rights, inheritance rights and other property rights can be found in the Roman private law system, but intellectual property rights are difficult to blend with materialized property in the traditional system. Based on the tradition of codification since Roman law and the incompetence of legislative technology, intellectual property rights failed to appear as a systematic right system in the paradigm civil code of modern society.
Non-paradigm: the acceptance of intellectual property system by modern civil code style
Since the 20th century, the intellectual property system has made great progress: the basic norms have been continuously improved, the scope of protection has been continuously expanded, and the trend of integration and modernization has become increasingly obvious. At the same time, some civil law countries tried to incorporate the intellectual property system into their civil codes, and launched the second movement of compiling civil codes in the 1990s. Some scholars in our country call it a great progress in the compilation of civil code, which makes up for a great shortcoming of modern paradigm civil code. Another scholar takes this legislative example as a paradigm and advocates that a unified property right system including intellectual property rights should be stipulated in the future civil code. The author has doubts about the above viewpoints.
Since the 20th century, several representative civil codes have reformed and broken through the traditional property right system, and stipulated the compilation of intellectual property rights in different styles and ways, which is undoubtedly an institutional innovation in the compilation of civil codes. This change stems from people's understanding of the essential attributes of intellectual property rights. Historically, intellectual property rights have experienced a development process of "feudal franchise-spiritual ownership-intangible property rights"; Today, intellectual property has become a private right universally recognized by all countries in the world, and it is a new type of civil right. The author believes that intellectual property is a form of property right that civil law forces and institutionalizes intangible property in the form of knowledge. The intangibility of the object is the essential feature of intellectual property, but the basic attribute of private right is not essentially different from property right and creditor's right. In this sense, legislators write intellectual property rights and other civil rights into the civil code, and their motives are understandable. The problem is that it is difficult for the civil code to incorporate intellectual property rights into its system because of its own characteristics and many difficulties in legislative technology. The drafters of the existing civil code have adopted two ways: one is to incorporate all the relevant rules of intellectual property rights into the civil code, which is undoubtedly the translation of legal norms. Because it involves many public law norms, this method is difficult to apply to all intellectual property systems (such as Vietnamese laws); Second, abstracting from all kinds of intellectual property rights, the civil code stipulates applicable rules and some important systems, but at the same time it retains special laws. This way retains the purity and formal beauty of private rights legislation to a certain extent, but it is of little substantive significance and inconvenient to apply (such as Italian law). Generally speaking, the acceptance of intellectual property system in modern civil code is of historical significance, but it is not enough to follow the trend.
Specialized civil law: the best choice of intellectual property legislation
One-way legislation is a common practice of intellectual property legislation in most countries in the world. This style appears in the form of special legal system in common law countries, and it is a special civil law under the basic law of civil law in civil law countries.
At the end of the 20th century, France, which adopted the tradition of single-line legislation, compiled 23 single-line laws and regulations related to intellectual property into a unified code, namely the French Intellectual Property Code 1992. Some scholars believe that this code is the first code in the field of intellectual property protection in the world, and it may become a typical example of the general separation of intellectual property law and civil law in 2 1 century. French intellectual property code is not only the crystallization of more than 200 years of relevant legislative experience since the French Revolution, but also the result of institutional innovation in response to contemporary economic and technological development, and its legislative achievements deserve attention. However, this code has not changed its basic status and essential attributes as a special civil law, and the reasons can be analyzed from the following two aspects.
First of all, French intellectual property law, civil law and commercial law are still the relationship between basic law and special law. Dr. Huang Hui, the translator of Intellectual Property Code, wrote: 1804, when the French Civil Code was promulgated, the importance of intellectual property rights was not as prominent as it is now, and the Civil Code did not have special provisions on intellectual property rights. Therefore, after France decided to adopt separate legislation on intellectual property rights, it paid great attention to dealing with the relationship between intellectual property rights and general laws such as civil law and commercial law, and achieved good results. For example, intellectual property is an intangible property right, and many provisions of the Civil Code on tangible property rights cannot be directly applied to intellectual property rights; In order to protect the author's rights and interests from damage, a large number of restrictions are imposed on the freedom of contract; The labor contract of intellectual creation does not affect the author's enjoyment of spiritual rights and ideological rights; The relationship between copyright, marriage and inheritance also has special provisions different from general laws. Except for the above exceptions, the general principles stipulated in the Basic Law, as a civil code, are still applicable. This shows that the French intellectual property code and the French civil code are two independent codes, but they are not two parallel codes. They are still the relationship between the basic law and the special law. In the pluralistic system of private law, civil code exists as civil common law or basic law, which stipulates the general problems of private rights. Intellectual property code is a special law, which makes special provisions on special issues of intellectual property. The significance of making the above distinction between the two codes is that the application of intellectual property law should take precedence over the civil code. If the former has special provisions, its norms should be applied first; If there are no special provisions, the basic law norms shall apply. It can be said that although the intellectual property code is called Code, it has not changed its basic status as a special law.
Secondly, French intellectual property code is a special form of systematization of special laws and regulations. General principles are not a simple summary of existing normative documents, but a systematic legal document processed and sorted out on the basis of original legal norms. French legislators have integrated and revised various separate legislation on intellectual property rights, thus realizing the basic requirements of codification. French intellectual property code has two advantages in legislative technology: one is the integrity of the system, and the other is the harmony of content. The code is divided into three parts: the first part is the property right of literature and art, which stipulates copyright, neighboring right and database author right; The second part is industrial property right, which stipulates the right of appearance design, invention patent, technical secret, layout design of integrated circuit, new plant variety and trademark right. The third part is the application in overseas territory and Mayol territory. As far as its basic system is concerned, the code covers almost all the contents of modern intellectual property rights. The law has also handled the internal relations of various intellectual property systems well and avoided various conflicts arising from the original separate legislation. For example, computer programs should be protected by copyright and should not be granted patents; The protection of database producers is independent of the copyright protection of databases or their components; New plant varieties are not protected by patents and have exclusive rights; Marks related to prior rights such as copyright, design right, personal right, geographical indication right and trade name right shall not be registered as trademarks. However, the French intellectual property code obviously missed an element of codification, that is, the lack of applicable principles and rules of various intellectual property systems, and legislators failed or may not be able to design a general rule that is the same as the Civil Code. As the translator Dr. Huang Hui pointed out, "1992, when the Code was promulgated, the laws of all intellectual property departments at that time were brought together and the style remained independent of each other. 1994 only modified the code to strengthen anti-counterfeiting. " It can be seen that in terms of legislative technology, the French intellectual property code is a collection of various laws and regulations, and it is a systematization of special laws and regulations, and it has not changed the fundamental attribute of the intellectual property system as a special civil law.
The French intellectual property system in the form of code has not gone far in the relevant legislative style. From a global perspective, civil special law is still the preferred mode of intellectual property legislation in countries with civil law system. The author believes that the above choices are mainly based on the following reasons.
First of all, modern intellectual property law is a comprehensive legal norm system. From the beginning, the intellectual property system is a special law characterized by comprehensive legal norms and diversified legal sanctions, which is significantly different from the basic civil law as a civil code. The intellectual property system was originally a substantive law to protect the rights of creators, but it is generally stipulated in legislation that there are rights acquisition procedures, rights change procedures, rights management procedures, rights relief procedures and so on. That is, the content of procedural law is stipulated in substantive law, and procedural law depends on substantive law. The intellectual property system was originally a private law to adjust individual intellectual property rights, but many public law norms such as administrative management, administrative punishment and criminal sanctions appeared in legislation, which showed the combination of private law and public law norms in legislative technology. It is true that the particularity of intellectual property legal norms does not affect its essential attributes as a part of the civil law system. However, from the particularity of intellectual property norms, it is necessary to legislate this comprehensive law separately from the civil code. If all intellectual property rights systems are incorporated into the civil code, a large number of procedural norms and public law norms will make it difficult for the civil code to coordinate in system, and the relevant provisions will be difficult to be compatible in nature, and the civil code will also be unable to achieve its formal "aesthetic requirements." If the intellectual property system is incorporated into the civil code and legislation is made separately according to its different normative nature, the same legal system will be artificially separated, which will only increase the inconvenience of law application.
Second, modern intellectual property law is an open legal system. Compared with the copyright, patent and trademark rights covered by modern laws, modern intellectual property law is a very huge legal system, which is stated in the provisions of the Convention on the Establishment of the World Intellectual Property Organization. It is the sum total of all rights systems arising from intellectual activities in the fields of industry, science, literature or art. Since the rise of the new technological revolution in the mid-20th century, knowledge economy has not only spawned a new concept of property rights, but also a new intellectual property system. This is mainly manifested in two aspects: first, the "edge protection law", which uses some rules of patent right and copyright to create a new system called "industrial copyright", and the exclusive right of integrated circuit layout design belongs to this category; The second is the "separate protection law", that is, the protection of "quasi-patents" or other similar intellectual property rights of special intellectual products. The right to new plant varieties and domain names all belong to this category. While the new intellectual property system is constantly emerging, the old related systems have gradually evolved into new members of the intellectual property legal system, the most notable of which are trade secrets and anti-unfair competition. Trade secret is an intangible information property. Different from patented technology, its rights are not independent in the strict sense, and are not limited by region and time. The effectiveness of rights depends entirely on the confidentiality of trade secrets. It is precisely because of this feature that civil law countries have long adopted the protection of contract law or tort law, and trade secrets are not included in the traditional intellectual property system. Since the 1960s, the International Chamber of Commerce (ICC) has taken the lead in endowing trade secrets with property rights, and the World Intellectual Property Organization has also implied in its founding convention that trade secrets can be incorporated into intellectual property rights. In the 1990s, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) specifically stipulated the protection of "undisclosed information" and confirmed that trade secrets belong to intellectual property rights. In addition, anti-unfair competition is also closely related to intellectual property rights. At first, the competition law was only a supplementary protection of intellectual property rights, which was intended to provide the bottom protection for the overlapping fields or vacuum areas of various intellectual property systems. In modern society, anti-unfair competition has been classified into the field of intellectual property law. The Stockholm text of the Paris Convention for the Protection of Industrial Property 1967 lists patented technology, business signs and the prevention of unfair competition as the objects of industrial property rights, the Convention for the Establishment of the World Intellectual Property Organization 1967 includes the right to combat unfair competition in the scope of intellectual property rights, and the Agreement on Trade-related Aspects of Intellectual Property Rights 1993 emphasizes that all parties should abide by the Paris Convention. The above situation shows that modern intellectual property law is in the process of continuous development and reform, and its rights system is a dynamic and open legal system. It is obviously inappropriate to put this frequently changing law in a civil code that requires relative stability.
Third, modern intellectual property law is a constantly innovating legal norm system. Modernization and integration are two major trends in intellectual property legislation. The former is promoted by the development of modern science and technology, while the latter is subject to the formation of a new international economic order. It has been 300-400 years since the rise of intellectual property law, which was born on the basis of technological revolution and changed by technological revolution. Its institutional history itself is a process of interaction and mutual promotion between scientific and technological innovation and institutional innovation. In this sense, the intellectual property system is undoubtedly a "model of institutional civilization". Since the second half of the 20th century, the new technological revolution and information revolution (or knowledge revolution) have appeared one after another, which makes the modern intellectual property law always in a drastic change. Copyright law bid farewell to the era of "printing copyright" in the19th century, passed through the era of "electronic copyright" in the 20th century, and then began a new era of "network copyright". This process makes the scope of traditional copyright protection continuously expand, new copyright rights emerge one after another, and the effectiveness of copyright gradually expands in virtual space; The patent law has greatly narrowed the scope of non-patented objects, focused on protecting the patents of chemical substances and drugs, and increased the patents of microbial varieties and methods. This legal system with the most "scientific and technological content" faces the challenge of 2 1 century gene technology patent after realizing the goal of legislative modernization; In cyberspace, trademark law not only involves the reform of traditional trademark system (such as the conflict between the regionality of trademark rights and the internationality of the Internet, the conflict between trademark classification protection and the exclusive effect of online trademark rights, the change of infringement forms of online trademarks and the determination of tort liability, etc.). ), we must also consider the innovation of domain name protection system (such as the registration and review of domain names, the nature and content of domain name rights, the conflict between domain name rights and other prior rights, the protection of domain name rights and the handling of domain name disputes, etc. ). Intellectual property law should not only realize legislative modernization through institutional innovation, but also establish a new intellectual property protection mechanism on a global scale, that is, realize legislative integration through institutional reform. In the international community, the protection of intellectual property rights is closely related to international economy and trade. Through the Uruguay Round negotiations, three systems have been formed within the framework of the World Trade Organization: agreement on trade in goods, agreement on trade in services and agreement on trade-related intellectual property rights. Due to the effective operation of the World Trade Organization and the above-mentioned conventions, intellectual property protection has now become an integral part of the international economic and trade system. Internationally, the intellectual property system has entered a new stage of unified standards. In this context, legislators in various countries have to "revise the outline and reform the laws" and re-examine their own intellectual property systems in accordance with the relevant requirements of international conventions. Based on the above situation, the intellectual property law has been revised frequently since 1970s. According to the data, the copyright laws of developed countries are revised once every 10 year on average. The French intellectual property code has been revised and supplemented 12 times since it was promulgated six years ago. China's trademark law and patent law have undergone two major revisions since their promulgation, one in the early 1990s and the other at the beginning of the new millennium. It should be noted that these legal revision activities are completed in the form of special laws, while the systematic and stable civil code does not have these convenient conditions.
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