The principle of balance of interests refers to “the coordination of conflicting factors in all aspects through the authority of law, so that the interests of relevant parties can achieve a reasonable optimization state on the basis of coexistence and compatibility”
Conflicts of interest can generally be resolved by spontaneous social adjustment. However, with the diversification of interests and the unlimited demand for interests, conflicts of interest have exceeded the scope of spontaneous social adjustment. Accordingly, the law emerged as an effective means to resolve conflicts of interest. The law adjusts conflicting interests, arranges the order and hierarchy of interests, and provides answers to various interest evaluation questions, that is, it provides a series of evaluation norms before people pursue interests. The law resolves conflicts of interest based on stable evaluation norms, making the law a stable and effective conflict-of-interest resolution mechanism that keeps the conflicting parties in a balanced state of interest relationships. Specific to the field of patent law, the law needs to deal with conflicts of interest between the legitimate rights and interests of the patentee and the legitimate interests of interested parties related to the patent, as well as the legitimate rights and interests of the patentee and the interests of the public. resolve and bring it into a state of balance of interests.
Function
(1) The balance of interests is the basis for realizing the basic value of law
Since the birth of law, it has been based on the realization of fairness, justice, order and efficiency. for the value goals it pursues. However, the realization of the above-mentioned value goals is predicated on the balance of interests. As Roscoe Pound said, "The best law should be one that can achieve maximum social benefits while avoiding waste to the greatest extent." That is to say, when the law adjusts various conflicting interests, it must not only maximize the to meet the interests and needs of each conflicting subject, while also minimizing friction and avoiding waste of resources. Because at each different stage of development of society, there will be a value goal that is in a dominant position and should be realized first. In the process of legislative and judicial activities, the dominant value objectives should first be fully respected by legislators and judiciaries. On the premise of ensuring the realization of advantageous value goals, other value goals in a weak position are also reflected, so that strong interests and weak interests achieve a mutual balance.
(2) The principle of balance of interests is the guarantee for coordinating and balancing conflicts of interests
Based on the blindness, endlessness and one-sidedness of human pursuit of interests, imbalances of interests and even conflicts of interests are in reality Inevitable in life. The root cause is that social material resources are the soil where interests arise and are also the medium for real interests. The limited nature of social material resources and the unlimited demands of interest subjects determine that there cannot be a state of balance between supply and demand. Therefore, in the process of maximizing their own interests, relevant stakeholders compete for limited social material resources, and conflicts will inevitably occur. As Rothko Pound said, "The expansion of desire in human nature is contradictory to social nature, and it is this contradiction that creates the source of conflicts of interest."
Since conflicts of interest are unavoidable, External forces need to be used to balance conflicting interests. As an effective means of coordinating interest relationships, law has the function of coordinating and balancing conflicts of interest, and is a long-term mechanism to achieve a balance of interests. The law allocates existing interests in an authoritative manner, fixes them in legal provisions, and appears in the name of the country, requiring the public to comply, thereby achieving the purpose of resolving conflicts of interest. First, the law identifies, confirms and measures various conflicting interests, and then determines the principle, scope, quantity and quality of interest distribution, and then allocates interests among various interest subjects, and confirms the rights and rights enjoyed by each interest subject. The obligations that should be borne; secondly, the law tends to protect the interests of vulnerable subjects in society and give special consideration when distributing benefits to achieve a balance of interests between strong groups and vulnerable groups.
Applicable method
The basic application method of the interest balancing mechanism is to adjust the rights and obligations of each subject so that all parties are in a balanced state. In intellectual property law, the basic method to achieve a balance of interests is “by allocating rights and obligations, and establishing justice standards, justice models and justice orders for the allocation of intellectual product resources.”
“The balance of interests in intellectual property law includes the overall balance of rights and obligations in intellectual property law, the balance between the interests of intellectual property holders and the interests of the public, the balance of rights and obligations between intellectual property holders, and the rights of the intellectual property holders themselves. Balance of obligations, etc. "The interest balance mechanism is centered on the allocation of rights and obligations, and its application should adhere to the following two basic principles.
1. The principle of equal treatment
When allocating rights and obligations, the principle of equal treatment is one of the first basic principles to be considered. In a modern society governed by law, the law aims to achieve social fairness and justice, and equality is the basis for achieving the above value goals. At present, the principle of equality has been absorbed and recognized as one of the legal principles by the laws of modern countries. The so-called principle of equality, "first of all, should be reflected in formal equality, that is, the same situation is treated the same, and different treatment in the same situation cannot be caused by different interest subjects, and the personality equality of all interest subjects should be maintained; secondly, it should be substantive equality, that is, different treatment in different situations , When allocating rights and obligations, the interests of vulnerable groups should be protected and the differential interests of vulnerable groups should be protected. "In this way, the results of the allocation of rights and obligations based on the principle of equality can equally protect the basic rights of citizens and maintain the origin. interests of disadvantaged entities or entities in a worse situation to achieve a balance of interests among all parties.
2. The principle of maximizing overall interests
“The function of law is to regulate, reconcile and mediate various complex and conflicting interests, so that most of the various interests or we The important interests in the culture are satisfied while minimizing the sacrifice of other interests. "When allocating rights and obligations, while taking the size of the interests as the criterion, we must take into account the content behind each interest and fully analyze the nature of each interest. Particularity and complexity, the interests are distributed among the various stakeholders according to the principle of mutual win or multi-win, so as to maximize the overall interests of multiple subjects. In the process of balanced allocation of interests, each interest subject aims at maximizing interests, but maximizing interests cannot be at the expense of unlimited sacrifice of the interests of other subjects. Therefore, the law needs to be based on basic legal principles such as fairness and justice to maximize the overall interests with the least sacrifice.
Legal Control
There are two ways to use the law to achieve a balance of interests. One is the legislative approach, that is, the design of laws, rules, and systems are based on the balance of interests; the other is the judicial approach. , that is, the process and goals of judicial activities are based on the balance of interests.
1. Establishment of Legislative Principles
Society is a complex, multi-dimensional interest complex in which multiple interest relationships compete with each other. Legislative activities are first of all an interest measurement process. The various interests that compete with each other are measured based on the principles of fairness and justice, and ultimately the reasonable distribution of various resources and interests among the various subjects is achieved. Through legislative activities, multiple conflicting interests that were once in a game relationship can be re-balanced and fixed in the legal system in the form of rights and obligations. As the product of legislative activities, the legal system is the result of legislators comprehensively balancing multiple conflicting interests. "Rights are interests protected by law, while obligations are interests stipulated by law." The result of legislative activities balancing conflicting interests is to protect the affirmative parts in the form of rights and regulate the negative parts in the form of obligations. Therefore, establishing the principle of balance of interests in legislative activities and balancing conflicting interests in the form of rights and obligations is the first and most important step to achieve a balance of interests in society as a whole.
2. Establishment of Judicial Principles
Based on the characteristics of law itself - hysteresis, the law cannot regulate every conflict in reality, which means that the law It is impossible to balance various interests in real society. For some conflicts of interest that are not regulated by legislation but need to be resolved, the judiciary needs to take certain measures to carry out supplementary interest weighing and achieve an all-round balance of interests. Judicial activities are actually a process of supplementary balancing of interests that exist between "both parties, the parties and the third party, and the public" and that are not recognized in certain legislative activities.
Judicial activities require the evaluator, the judge, to weigh and make choices among the conflicting interests existing among the above-mentioned subjects based on the principle of balance of interests. Of course, due to differences in individual qualities and concepts among judicial officers, their standards and results for balancing interests are bound to be subjective. Establishing the principle of balance of interests in judicial activities can effectively make up for the problems caused by legal lag, but it also has drawbacks.