美国337条款实施机制研究
发布时间：2018-11-24 14:47
【摘要】： 337条款实施机制是整个美国对外贸易法体制内的一个重要的有机组成部分,同时也是美国知识产权实施机制中关键环节之一。针对该实施机制而进行的系统、整合的研究方式是本文区别于以337条款本身等其他方面为研究对象的论文的显著特点。本文认为将位于不同层面上但彼此间存在着本质的、天然的有机联系的法律元素囊括于该实施机制中加以综合性地考察,不仅有助于了解各元素本身,而且还有助于在此基础之上深刻理解该机制的各组成要素之间的联系与互动以及整体的运行原理、规律和效能。这一分析模式和进路亦是本文之重要特色之一。本文旨在从实施机制的视角,综合运用法学、法经济学的相关理论对337条款所涉之多方面问题进行较深入系统的研究,从而力图解释现象、预测趋势和提供对策。除导论和结论外,本文共分为三章。 第一章在理论层面上分别从国际贸易理论与政策、国际法法理和法经济学的视角对337条款实施机制进行了研究。本文认为337条款实施机制虽然是一种国内的法律机制,但实质上却是美国推行其特定的宏观国际贸易政策的一种微观法律工具或手段,且从深层次上又植根于若干种相应的国际贸易理论。因此,337条款实施机制的产生和发展同特定的国际贸易政策与国际贸易理论存在着天然的、本质的密切联系。经分析,337条款及其所依托的《1930年关税法》的制定和随后的修订无论在时间上,还是在性质上,都分别正是与超保护贸易理论和新保护贸易理论及其相应的美国对外贸易政策休戚相关。 由法哲学的维度实然地检视之,从实在国际法(Positive International Law)角度而言,在337条款实施机制的合法性尚未被WTO争端解决机制所彻底否定之前,该机制在国际法框架下是合法的。 本文经由新制度经济学的路径依赖理论分析认为,即便能够证明,并通过WTO争端解决机制迫使美国再度全面修订乃至废除337条款,美国也绝不可能对进口产品侵犯其国内专利权等知识产权的情形置若罔闻,势必还会对此类情形加以有效的制度性约束,337条款实施机制也仍将“形灭而神不灭”。而且,从经济学角度分析,之所以337条款实施机制或其制度内核应该不会被全盘废除,是因为全盘废除所引致的沉没成本(sunk cost)可能会高到无可估量。而沉没成本方面的因素亦是产生制度的路径依赖效应的重要因素之一。因而,337条款实施机制这一制度体系已经由其自身发展历史和演化逻辑而形成了一定的路径依赖(path-dependence),并在一定程度上产生了锁定(lock-in)效应。就其发展趋势而言,在可预见的未来,以美国知识产权边境保护为己任的337条款实施机制将会继续存在甚至还可能获得进一步的加强。 第二章首先扼要地阐析337条款实施机制的基本程序,为其后较深入、全面和系统地剖析该实施机制做铺垫。其次,通过将337条款调查同反倾销调查相比较,以更清晰地展现出现行337条款实施机制的主要特点,从而以利进一步剖析该机制。最后,根据实施机制中不同环节的性质,先将该机制宏观地分为行政程序、司法程序与海关自执行程序加以分别剖析,然后在此基础上再对之进行整体阐析。 就整体实施机制内的行政程序、司法程序和海关自执行程序的关系而言,总体上可认为,行政程序旨在生成救济措施,司法程序旨在确认救济措施,而海关自执行程序旨在执行和具体实现救济措施。三者依次环环相扣、前后呼应并缺一不可,从而使得337条款实施机制所能生成的救济措施在具有充分合法性的基础上得以切实有效地具体实现,进而从根本上发挥保护美国国内产业之核心功效。 第三章对中国从入世前偶尔涉案转变为入世后却成为最主要的涉案国的现象加以分析,本文认为,造成这种现象的主要原因有两个：第一、中国加入WTO后在更大程度上融入了世界贸易体制,客观上导致中国对包括美国在内的其他WTO成员的贸易量节节攀升。出口至美国的货物总量越多,涉案的概率就越大；第二、随着中国近年来科技水平和综合国力的不断提高,出口至美国的技术密集型产品的比重不断增加,导致出口至美国的产品侵犯或可能侵犯美国专利权的概率亦随之增大。 本文认为中国企业涉案的案情各有不同,加之涉案企业在美国的市场占有率、营销策略和资本运营状况等多方面的差异,因此并不存在“放之四海而皆准”的应对方略。企业涉案后聘请律师代理应诉也不一定均为上策。而需依具体个案的各方面具体情况综合考虑而选择有针对性的应对方略,不排除涉案中国企业在有的情况下选择缺席反为上策。在应诉为上策的情况下,从国际贸易的知识产权法角度,’中国企业可从国际贸易委员会的对事管辖权方面、337条款的国内产业之规定方面、主动介入方面和美国专利法及相应的判例法等方面着手考虑应对之策。 本文最终认为,多方探寻中国企业涉案后的的具体应对之策固然重要,但是这些应对于已然的策略在总体效果上仅仅能够起到扬汤止沸的治标之效。毕竟,只要涉案成为被申请人,无论结果如何,都将无可避免地或多或少蒙受经济损失。因此,归根结底,对以美国市场为主要目标市场的中国企业而言,不断地增强知识产权意识(尤其是专利意识)、加大产品研发力度并及时在美国申请并获得专利等,才是能防患于未然并从根本上避免遭逢337条款调查的釜底抽薪的治本之道。
[Abstract]:The implementation mechanism of 337 is an important organic component of the whole American foreign trade law system, and is also one of the key links in the implementation mechanism of the intellectual property of the United States. The systematic and integral research method for this implementation mechanism is the distinguishing feature of this paper from other aspects, such as 337 terms and so on. In this paper, it is considered that the legal elements which are located at different levels but have the essential and natural and organic connection with each other are included in the implementation mechanism to make a comprehensive study, not only to understand the elements themselves, It also contributes to a deep understanding of the relationship and interaction between the constituent elements of the mechanism, as well as the overall operational principle, law and efficiency. This analysis model and route are also one of the important features of this paper. The purpose of this paper is to study the multi-faceted problems of 337 articles from the perspective of the implementation mechanism, using the relevant theories of law and law economics, so as to try to explain the phenomena, predict the trends and provide the countermeasures. In addition to the introduction and conclusion, this paper is divided into three chapters. The first chapter is based on the theory and policy of international trade, the legal theory of international law and the perspective of law economics. It is a kind of domestic legal mechanism, but in essence it is a kind of micro-legal instrument or means for the United States to carry out its specific macro-international trade policy, and it is deeply rooted in several corresponding international laws. Therefore, the production and development of the 337-clause implementation mechanism is natural and essential to the specific international trade policy and the international trade theory It is closely related to the theory of super-protection trade and the theory of new protection and the corresponding U.S. foreign trade policy, whether in time or in nature. The view of the dimension of the legal philosophy, from the point of view of the positive international law, is that the mechanism is in the State of China before the legality of the implementation mechanism of 337 has not been completely repudiated by the WTO dispute settlement mechanism On the basis of the theory of the path-dependence of the new institutional economics, the paper holds that, even if it can be proved, and through the WTO dispute settlement mechanism, the United States is forced to It is in no way possible for the United States to ignore the intellectual property rights of imported products and other intellectual property rights, and it is bound to be effective institutional constraints on such cases, and the implementation mechanism of 337 will still be the same as" And the God Will not "" . Also, from an economic point of view, the 337 implementation mechanism or its system core should not be completely abolished because of the overall abolition of the sunk costs (sunk). cost) may be high to inestimable, and the factor in the cost of sink is also a system of production One of the important factors of the path-dependent effect is that the system of the 337-term implementation mechanism has formed a path-dependency by its own development history and the evolution logic, and it can be generated to a certain extent. The lock-in effect. For its development trend, the 337 implementation mechanism, which is protected by the US intellectual property border as its own, will continue to exist in the foreseeable future in that second chap, the basic procedure for the implementation of the article 337 implementation mechanism was briefly describe, which was followed by a higher level of follow-up, in an in-depth, comprehensive and systematic analysis of that implementation mechanism, second, by compare the 337 investigation with the anti-dumping investigation to show more clearly the implementation of the 337 clause The main feature of the system is to facilitate the further analysis of the mechanism. Finally, according to the nature of the different links in the implementation mechanism, the mechanism is divided into the administrative procedure, the judicial process and the customs self-executing program, respectively. On the basis of the analysis of the relationship between the administrative procedure, the judicial process and the customs self-executing procedure in the overall implementation mechanism, the administrative procedure is generally regarded as the purpose of generating the relief measures, and the judicial process is designed to confirm the relief. Measures, and the self-executing procedures of the customs, are designed to implement and implement the relief measures in turn. The three are ring-and-ring in turn, which are in concert with each other and are short of one, so that the relief measures that can be generated by the 337 implementation mechanism can be more and more effective and practical on the basis of the full legitimacy The third chapter analyses the phenomenon that China has become the most important country after China's entry into WTO. Two: First, after China's entry into the WTO, it is more integrated into the world trade system, guest In view of China's rise in the trade volume of other WTO members, including the United States, the more the total amount of goods exported to the United States, the greater the probability of the case; and second, as China's science and technology levels and heddle in recent years The increasing share of technology-intensive products from exports to the United States has been increasing, with a continuing increase in the proportion of technology-intensive products exported to the United States The probability of an export-to-US product violation or a possible violation of the U.S. patent right is also increased. In this paper, the author thinks that the case of the Chinese enterprises is different, and in addition, the company's market share in the United States, the marketing strategy and the capital operation condition are different, so there is no "unk". >鈥渢o be one of the four seas" 's response plan. The application of a lawyer's agent in the case of a business case shall not be the best policy, and it is required to be selected according to the specific circumstances of the specific case. "The targeted response plan does not exclude the situation of the Chinese enterprises involved in the case in the case of an action against an international trade, the Chinese enterprise may, from the angle of the intellectual property law of international trade, take the form of the domestic industry of the International Trade Commission on the domestic industry of the article 337 In the end of this paper, the author thinks that the specific response of the Chinese enterprises is to be explored in many ways. The strategy is important, but these should only play a role in the overall effect of the already existing strategy After all, as long as the case involved is the respondent, no matter how the result is, the economic loss will be more or less. Therefore, in the final analysis, for Chinese enterprises with the main target market in the U.S. market, it is constantly increasing Strong intellectual property awareness (especially patent awareness), increased product R & D and timely application in the United States and obtained
【学位授予单位】：复旦大学
【学位级别】：博士
【学位授予年份】：2010
【分类号】：D971.2;DD912.29
本文编号：2354126
[Abstract]:The implementation mechanism of 337 is an important organic component of the whole American foreign trade law system, and is also one of the key links in the implementation mechanism of the intellectual property of the United States. The systematic and integral research method for this implementation mechanism is the distinguishing feature of this paper from other aspects, such as 337 terms and so on. In this paper, it is considered that the legal elements which are located at different levels but have the essential and natural and organic connection with each other are included in the implementation mechanism to make a comprehensive study, not only to understand the elements themselves, It also contributes to a deep understanding of the relationship and interaction between the constituent elements of the mechanism, as well as the overall operational principle, law and efficiency. This analysis model and route are also one of the important features of this paper. The purpose of this paper is to study the multi-faceted problems of 337 articles from the perspective of the implementation mechanism, using the relevant theories of law and law economics, so as to try to explain the phenomena, predict the trends and provide the countermeasures. In addition to the introduction and conclusion, this paper is divided into three chapters. The first chapter is based on the theory and policy of international trade, the legal theory of international law and the perspective of law economics. It is a kind of domestic legal mechanism, but in essence it is a kind of micro-legal instrument or means for the United States to carry out its specific macro-international trade policy, and it is deeply rooted in several corresponding international laws. Therefore, the production and development of the 337-clause implementation mechanism is natural and essential to the specific international trade policy and the international trade theory It is closely related to the theory of super-protection trade and the theory of new protection and the corresponding U.S. foreign trade policy, whether in time or in nature. The view of the dimension of the legal philosophy, from the point of view of the positive international law, is that the mechanism is in the State of China before the legality of the implementation mechanism of 337 has not been completely repudiated by the WTO dispute settlement mechanism On the basis of the theory of the path-dependence of the new institutional economics, the paper holds that, even if it can be proved, and through the WTO dispute settlement mechanism, the United States is forced to It is in no way possible for the United States to ignore the intellectual property rights of imported products and other intellectual property rights, and it is bound to be effective institutional constraints on such cases, and the implementation mechanism of 337 will still be the same as" And the God Will not "" . Also, from an economic point of view, the 337 implementation mechanism or its system core should not be completely abolished because of the overall abolition of the sunk costs (sunk). cost) may be high to inestimable, and the factor in the cost of sink is also a system of production One of the important factors of the path-dependent effect is that the system of the 337-term implementation mechanism has formed a path-dependency by its own development history and the evolution logic, and it can be generated to a certain extent. The lock-in effect. For its development trend, the 337 implementation mechanism, which is protected by the US intellectual property border as its own, will continue to exist in the foreseeable future in that second chap, the basic procedure for the implementation of the article 337 implementation mechanism was briefly describe, which was followed by a higher level of follow-up, in an in-depth, comprehensive and systematic analysis of that implementation mechanism, second, by compare the 337 investigation with the anti-dumping investigation to show more clearly the implementation of the 337 clause The main feature of the system is to facilitate the further analysis of the mechanism. Finally, according to the nature of the different links in the implementation mechanism, the mechanism is divided into the administrative procedure, the judicial process and the customs self-executing program, respectively. On the basis of the analysis of the relationship between the administrative procedure, the judicial process and the customs self-executing procedure in the overall implementation mechanism, the administrative procedure is generally regarded as the purpose of generating the relief measures, and the judicial process is designed to confirm the relief. Measures, and the self-executing procedures of the customs, are designed to implement and implement the relief measures in turn. The three are ring-and-ring in turn, which are in concert with each other and are short of one, so that the relief measures that can be generated by the 337 implementation mechanism can be more and more effective and practical on the basis of the full legitimacy The third chapter analyses the phenomenon that China has become the most important country after China's entry into WTO. Two: First, after China's entry into the WTO, it is more integrated into the world trade system, guest In view of China's rise in the trade volume of other WTO members, including the United States, the more the total amount of goods exported to the United States, the greater the probability of the case; and second, as China's science and technology levels and heddle in recent years The increasing share of technology-intensive products from exports to the United States has been increasing, with a continuing increase in the proportion of technology-intensive products exported to the United States The probability of an export-to-US product violation or a possible violation of the U.S. patent right is also increased. In this paper, the author thinks that the case of the Chinese enterprises is different, and in addition, the company's market share in the United States, the marketing strategy and the capital operation condition are different, so there is no "unk". >鈥渢o be one of the four seas" 's response plan. The application of a lawyer's agent in the case of a business case shall not be the best policy, and it is required to be selected according to the specific circumstances of the specific case. "The targeted response plan does not exclude the situation of the Chinese enterprises involved in the case in the case of an action against an international trade, the Chinese enterprise may, from the angle of the intellectual property law of international trade, take the form of the domestic industry of the International Trade Commission on the domestic industry of the article 337 In the end of this paper, the author thinks that the specific response of the Chinese enterprises is to be explored in many ways. The strategy is important, but these should only play a role in the overall effect of the already existing strategy After all, as long as the case involved is the respondent, no matter how the result is, the economic loss will be more or less. Therefore, in the final analysis, for Chinese enterprises with the main target market in the U.S. market, it is constantly increasing Strong intellectual property awareness (especially patent awareness), increased product R & D and timely application in the United States and obtained
【学位授予单位】：复旦大学
【学位级别】：博士
【学位授予年份】：2010
【分类号】：D971.2;DD912.29
【引证文献】
相关博士学位论文 前1条
1 余利红;中美知识产权保护摩擦的政治经济学分析[D];华中科技大学;2011年
相关硕士学位论文 前1条
1 王慧;美国“337条款”及我国应对策略研究[D];东北财经大学;2011年
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