案例研究：从滚石唱片诉讼案分析我国版权诉讼中客观的诉之合并

发布时间：2018-11-28 07:01

【摘要】：本论文来选题来源于自选,是笔者在通程律师事务所实习的时候碰到一个案件后,在黄辉明律师的点拨和指导下,在唐超华老师的细心教导下,对案例进行整理和分析,并深挖其中所涉及的法学理论知识而成。案例大致内容如下：滚石国际股份有限公司起诉一听音乐网侵权案,诉状递交后,上海市中级人民法院回寄公函称：“此案涉及多个作品专辑,请按专辑拆分起诉。”于是,这一个案件要被拆成600多个案件起诉,仅仅要求侵权者停止侵权的诉讼成本就要高达600多万元。如果按每首歌曲拆分,这一个案件要被拆成上万个案件起诉,诉讼成本更是高达上亿元。“滚石”公司首席代理律师黄辉明对此深感无奈,因为如果按法院要求拆分起诉,还不如不起诉。在全国范围来看,并不是所有的法院都是要求当事人拆分起诉,而且要求当事人拆分起诉的法院并不占多数,在有的地方而言,这甚至不过是个案而已。但是,法学研究并非只研究普遍现象,个案也应该是法学研究的对象之一,更何况,如类似案件,只要法律没有规定法院是拆是分,那么要求当事人拆分起诉的这种做法就可能被普及,这将对知识产权人维护自己权益造成极大的障碍。对于此类型的案件,笔者的观点是适合合并起诉,因为这能实现诉讼经济,进步诉讼效率,可以降低诉讼成本,鼓励人们主动维权,这也是法治社会的要求,这也是是为了避免法院对几个彼此有联系的诉做出相互矛盾的判决的需要。但要做到合并起诉,没有法律的明文规定,这将是一句空话。因此,笔者认为此类型的案件应该由法律明确哪些情形合并审理,哪些应该拆分审理。
[Abstract]:This thesis comes from the choice of my own choice. After I encountered a case during my internship at Tongcheng Law firm, under the guidance of lawyer Huang Huiming and under the careful guidance of teacher Tang Chaohua, I sorted out and analyzed the case. And dig deeply into the knowledge of the legal theory involved in it. The general contents of the case are as follows: rolling Stone International Co., Ltd. sued a music network infringement case. After the petition was submitted, the Shanghai Intermediate people's Court sent a letter saying: "this case involves many works and albums, please sue by album split." As a result, this case will be opened into more than 600 cases for prosecution, and the cost of only requiring the infringer to stop the infringement will be more than 6 million yuan. If split according to each song, the case will be broken into tens of thousands of cases, litigation costs as high as hundreds of millions of yuan. Huang Huiming, chief lawyer for Rolling Stone, was frustrated because it would be better not to sue if the court asked for a split. Across the country, not all courts require the parties to split the suit, and the court that requires the party to split the suit is not the majority, in some places, it is even a case. However, legal studies are not only concerned with general phenomena, but should also be the object of legal research. Moreover, in similar cases, as long as the law does not specify whether the court is to be divided, Then the practice of requiring parties to split and sue may be widespread, which will create a great obstacle for IPR holders to defend their rights and interests. For this type of cases, the author's view is suitable for joint prosecution, because it can achieve litigation economy, improve the efficiency of litigation, can reduce litigation costs, encourage people to take the initiative to protect their rights, which is also the requirement of the rule of law society. This is also to avoid the need for the courts to make conflicting decisions on several related cases. But to do joint prosecution, there is no clear legal provisions, this would be empty talk. Therefore, the author thinks that this kind of cases should be decided by law which circumstances should be merged and which cases should be split up.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2011
【分类号】：D925.1;D920.5

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