论商号及其法律保护
发布时间：2018-07-25 06:06
【摘要】：商号是商事主体进行营业活动时使用的名称,它是商号法律保护的对象。保护商号的实质在于保护其上的权利。之所以探讨这个问题,是因为我国立法没有明确界定过商号,只是把它作为企业名称的组成部分看待,商号没有独立的法律地位,只有企业名称权而无商号权的法定概念。学术界对商号的概念有广义狭义之分,广义商号即等于商业名称,狭义商号仅指字号,而立法持狭义说,但这种界定容易使商号被淹没在企业名称中得不到有效保护,也导致实践中产生不少问题,我国以“企业名称”为中心的立法模式,与国外以商号为中心的立法模式相比,存在不少问题:立法层级低,立法分散、混乱,法律规定简略、粗陋,相互之间不协调,管理法色彩浓厚等。对此,其他国家对商号的保护不仅对商号概念有明确的界定,商号保护立法位阶高、立法体系清、立法内容也比较全,而且对商号权的司法救济也比较到位,救济原则明确、救济手段多样。 本文的目的是通过明确商号与商号权,并对在此基础上构建商号保护基本规则涉及的问题进行探讨,提出相关建议。笔者认为,商号法律保护离不开一套基本规则的支撑。 除导言外,本文共分六章。 第一章商号法律保护的历史考察。本章分二节。首先,论文分析了商号在国外的起源与法律保护概况。阐述了商号的产生与存在从商法的发展历史来看是有其一定的合理性和必然性。而到了现代,商号又进入到知识产权法的视野。这在不少知识产权国际公约中都可以得到例证。这种变化可以从各国不同的立法模式中显现出来。其次,对商号在中国的起源及法律保护概况做了一番梳理。以时间维度,分别对近代以前的商号保护及特点、清末民国的成文法保护及特点、建国后的立法保护及问题作了分析、概括。回溯历史,可以看出商号保护在立法模式、保护目的、保护方式方面的中外差异。 第二章商号的界定。本章分三节。在第一节中,笔者通过分析国内外立法,对商号的概念及范畴作了比较灵活的界定。笔者认为,其实商号全称与商号核心构成都应属于商号范畴,全称是完整的商业名称,简称是商业名称中的核心构成部分,较多情形下是字号。处理两者关系可以通过不同的立法解释、立法特点予以明确。概念明确之后,笔者通过商号与相关概念的比较,对商号与企业名称、商业名称、字号的关系进行了重新定位。在第二节中,笔者把商号放在商业标识这个大平台中进行考察,这样更有助于对它的全面认识。特别是对商号与商标、域名的关系作了说明:它们同中有异、异中有同;既易冲突,也可共赢。在第三节中,笔者界定了商誉的概念以及商号与商誉的关系。指出商号既可以指称一个商事主体,同时这个特定的标记也可以积淀、代表并承载商誉,具有经济价值。 第三章商号法律保护的核心—商号权。本章分二节。第一节为商号权明确的必要性。笔者主要从立法和实践中的问题证明这个必要。我国现行立法中,《民法通则》对权利定性存在矛盾和偏差,而企业名称权不能满足对商号权的保护,《反不正当竞争法》的现有规定成效不大。由此导致许多实际问题,笔者对此进行了说明分析,并指出这些问题带来的消极影响,以此说明商号权明确的必要性。第二节对商号权做了界定。首先,笔者以为,商号权就是商事主体对其商号依法享有的专有权利,并对商号权的特征进行了分析。其次,分析了商号权性质之争的几种主要学说,即人格权说、财产权说、折衷说,并指出折衷说代表了大多数学者的观点,成为了商号权性质的通说。在此基础上,明确商号权符合知识产权的特征,并对这个定性进行了论证。同时,笔者探讨了商法与知识产权法对商号权的关注点的不同侧重。最后,对商号权的内容作了说明,商号权的内容主要包括商号使用权、专用权、许可权、转让权、变更权。 第四章商号取得制度的评价与建构。由于商号取得是商号法律保护的起始点,也是构建商号基本规则的重要方面,这是笔者关注这个问题的理由。本章分三节。第一节关于商号权的取得方式,各国做法不尽相同,通常有使用取得和登记取得,笔者对各自利弊作了分析,并认为,其实法律没有必要规定对所有商号必须登记才能取得商号权,商号登记应主要起强化保护的作用。另外,对其他的未登记商号一定程度上可以获得反不正当竞争法的保护。第二节是商号的选用与登记规则。对商号的选用原则,笔者认为要寻求自由主义和真实主义的平衡,选用要遵循单一性、识别性、禁止混淆的限制。对商号登记,笔者按登记种类进行了比较法的考察,在登记效力上,明确了不同的取得方式意味着登记有不同的效力。第三节谈了我国商号取得制度的问题及完善。 第五章商号利用制度的优化。我国目前关于商号利用的规定不够明确,甚至还成为商号权有效利用的障碍。有必要在借鉴国外规则的基础上,完善我国的相关规定。本章分三节。第一节是商号使用的规则。国外一般明确规定使用情形以及必须遵循正当使用、禁止混淆的规则。我国应完善相关规则。第二节是商号许可的规则。通过比较我国与国外的规定,指出了我国立法的矛盾之处与不足;通过对日韩商法中有关商号出借的规定,指出他们关于名义出借方责任的规定值得借鉴,同时对特许经营中涉及商号许可的问题进行分析,并指出了美国法上有关责任分担的规定值得我们借鉴。第三节是商号转让的规则。需要明确商号的转让方式、遵循的主要法律规则及由此产生的法律后果。 第六章商号保护制度的完善。本章分二节。第一节是完善对商号的立法保护。首先,完善商号立法保护模式的建议。要以商号为中心构建基本规则,以更为科学的以商号为中心的立法取代企业名称登记管理为中心的立法,可以考虑由国务院制定专门的《商号条例》。同时,运用多法协调办法,从不同角度、不同层次进行调节,以发挥立法的整体效应。其次,应加强对驰名商号、老字号的立法规范。第二节是完善对商号侵权行为的认定与救济。首先,明确商号侵权行为的主要类型,并对商号侵权行为的考量因素作了分析;其次,在商号侵权行为的救济方面,可以将保护在先权利和维护公平竞争作为最核心的救济指导原则。对商号侵权行为,完善民事、行政、刑事救济手段。
[Abstract]:The business name is the name used by the business subject to carry out the business activities. It is the object of the legal protection of the business name. The essence of the trade name protection is to protect the rights on it. The reason why this question is discussed is that the legislation of our country does not clearly define the trade name, but only regards it as part of the name of the enterprise, and there is no independent law. Status, only the legal concept of the right of enterprise name but no trade name. The concept of the business number in the academic circle has a broad and narrow sense. The broad business name is equal to the name of the business. The narrow sense only refers to the word number, but the vertical law holds the narrow sense, but this kind of definition can easily make the business name inundated in the name of the enterprise, but also leads to a lot of practice. There are many problems in the legislative mode centered on the "enterprise name" in our country. Compared with the foreign trade number based legislative model, there are many problems: the legislative level is low, the legislation is scattered, and the legal provisions are simple, rough, incompatible with each other, and the management law is rich in color. Clearly defined, the business number is high, the legislative system is clear, the legislative content is relatively complete, and the judicial relief of the right to trade names is also in place, the principle of relief is clear, and the means of relief are varied.
The purpose of this paper is to make a discussion on the problems involved in building the basic rules of business number protection on this basis, and put forward some suggestions. The author believes that the legal protection of business names can not be separated from the support of a set of basic rules.
In addition to the introduction, this article is divided into six chapters.
The first chapter is the historical investigation of the legal protection of the business number. This chapter is divided into two sections. First, the paper analyzes the origin and legal protection of the business number abroad. It is stated that the production and existence of the business number are reasonable and inevitable from the development history of the commercial law. This change can be exemplified in the International Convention on small intellectual property rights. This kind of change can be revealed in different legislative modes of various countries. Secondly, the origin of China and the general situation of legal protection are combed. In the time dimension, the protection and characteristics of the trade names before the modern times, the protection and characteristics of the statute law of the late Qing Dynasty and the Republic of China, the founding of the Republic of China, and the founding of the people's Republic of China After the legislative protection and problems are analyzed and summarized. Looking back on the history, we can see the differences between China and foreign countries in legislative mode, protection purpose and protection mode.
The second chapter is divided into three sections. In the first section, the author makes a more flexible definition of the concept and category of the business name by analyzing the legislation at home and abroad. In fact, the author thinks that the whole name of the business name and the core of the business name should belong to the business category, the full name is the complete business name, and it is referred to as the core component of the business name. In the second section, in the second section, the author puts the business sign on the big business logo. In the third section, the author defines the concept of goodwill and the relationship between business name and business reputation. At the same time, this particular mark can also be accumulated, representing and bearing goodwill, with economic value.
The third chapter is the core of commercial number legal protection - the right of business number. This chapter is divided into two sections. The first section is the necessity of the right of business name. The author mainly proves this necessity from the issues of legislation and practice. In the current legislation of China, the general rule of the civil law has contradictions and deviations on the qualitative rights, and the right of name of the enterprise can not satisfy the protection of the right of business name. < The existing regulations of the legitimate competition law have little effect. This leads to many practical problems. The author makes an explanation and Analysis on this, and points out the negative effects of these problems to illustrate the necessity of the clear trade name. The second section defines the right of business name. First, the author thinks that the right of business is to enjoy the business body according to the law. It also analyzes the characteristics of the right of business name. Secondly, it analyzes several main doctrines of the dispute of the right of business name, that is, the theory of personality right, the theory of property right, the compromise, and the compromise theory that represents the views of most scholars and becomes the general theory of the nature of the right of business. On this basis, it is clear that the right of business is in accordance with the characteristics of intellectual property. At the same time, the author discusses the different focus of business law and intellectual property law on the right of business name. Finally, the content of the right of business name is explained. The content of the right of business name mainly includes the right to use business, the right to special, the right to license, the right to transfer, and the right to change.
The fourth chapter is the evaluation and construction of the system. Since the acquisition of the business number is the starting point of the legal protection of the business number, it is also an important aspect of building the basic rules of the business. This is the reason for the author to pay attention to this problem. This chapter is divided into three sections. The first section about the way of obtaining the right of business names, the countries do not do the same way, usually have the use and registration. The author makes an analysis of their advantages and disadvantages, and believes that, in fact, the law does not need to stipulate that the registration of all the businesses must be registered to obtain the right of business. The registration of the business number should mainly play an important role in strengthening protection. In addition, the other unregistered trade names can be protected against the competition law to some extent. The second section is the choice of the business number and the registration of the business number. The author thinks that we should seek the balance between liberalism and realism, and choose to follow the limitation of singleness, identifiability and prohibition of confusion. The author makes a comparative study on the registration of business names. In the validity of registration, the different methods of acquisition mean that registration has different effects. The third section talks about the problems and perfection of the acquisition system of trade names in China.
The fifth chapter is the optimization of the use of business number system. The current regulations on the use of business number are not clear enough and even become an obstacle to the effective use of the right of business names. It is necessary to improve our relevant regulations on the basis of foreign rules. This chapter is divided into three sections. The first section is the rules for the use of business names. We must follow the rules of proper use and prohibit confusion. Our country should improve the relevant rules. The second section is the rule of business license. By comparing the regulations of our country and foreign countries, it points out the contradictions and shortcomings of our country's legislation, and points out that the provisions on the loan of the trade names in the Japanese and Korean commercial law indicate that the provisions of their nominal debit liability are worth it. At the same time, the paper analyzes the issue of licensing in franchising, and points out that the provisions on responsibility sharing in the United States law should be used for reference. The third section is the rule of trade name transfer. It is necessary to clear the way of transfer of business names, the main legal rules followed and the legal consequences of the resulting production.
The sixth chapter is to improve the system of business number protection. This chapter is divided into two sections. The first section is to improve the legislative protection of the business number. First, the suggestion of perfecting the model of the legislative protection of the commercial number. At the same time, the Institute has set up a special "trade number regulation". At the same time, the use of multi law coordination methods, from different angles, different levels to adjust, to play the overall effect of the legislation. Secondly, the legislative norms of the well-known trade number and old name should be strengthened. The second section is to improve the identification and relief of the tort behavior of the business. First, clear the main types of business tort. It also analyzes the consideration factors of the firm's tort; secondly, in the remedy of the tort, we can take the protection of right and the maintenance of fair competition as the most important guiding principle of relief.
【学位授予单位】：华东政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D923.43
本文编号：2142846
[Abstract]:The business name is the name used by the business subject to carry out the business activities. It is the object of the legal protection of the business name. The essence of the trade name protection is to protect the rights on it. The reason why this question is discussed is that the legislation of our country does not clearly define the trade name, but only regards it as part of the name of the enterprise, and there is no independent law. Status, only the legal concept of the right of enterprise name but no trade name. The concept of the business number in the academic circle has a broad and narrow sense. The broad business name is equal to the name of the business. The narrow sense only refers to the word number, but the vertical law holds the narrow sense, but this kind of definition can easily make the business name inundated in the name of the enterprise, but also leads to a lot of practice. There are many problems in the legislative mode centered on the "enterprise name" in our country. Compared with the foreign trade number based legislative model, there are many problems: the legislative level is low, the legislation is scattered, and the legal provisions are simple, rough, incompatible with each other, and the management law is rich in color. Clearly defined, the business number is high, the legislative system is clear, the legislative content is relatively complete, and the judicial relief of the right to trade names is also in place, the principle of relief is clear, and the means of relief are varied.
The purpose of this paper is to make a discussion on the problems involved in building the basic rules of business number protection on this basis, and put forward some suggestions. The author believes that the legal protection of business names can not be separated from the support of a set of basic rules.
In addition to the introduction, this article is divided into six chapters.
The first chapter is the historical investigation of the legal protection of the business number. This chapter is divided into two sections. First, the paper analyzes the origin and legal protection of the business number abroad. It is stated that the production and existence of the business number are reasonable and inevitable from the development history of the commercial law. This change can be exemplified in the International Convention on small intellectual property rights. This kind of change can be revealed in different legislative modes of various countries. Secondly, the origin of China and the general situation of legal protection are combed. In the time dimension, the protection and characteristics of the trade names before the modern times, the protection and characteristics of the statute law of the late Qing Dynasty and the Republic of China, the founding of the Republic of China, and the founding of the people's Republic of China After the legislative protection and problems are analyzed and summarized. Looking back on the history, we can see the differences between China and foreign countries in legislative mode, protection purpose and protection mode.
The second chapter is divided into three sections. In the first section, the author makes a more flexible definition of the concept and category of the business name by analyzing the legislation at home and abroad. In fact, the author thinks that the whole name of the business name and the core of the business name should belong to the business category, the full name is the complete business name, and it is referred to as the core component of the business name. In the second section, in the second section, the author puts the business sign on the big business logo. In the third section, the author defines the concept of goodwill and the relationship between business name and business reputation. At the same time, this particular mark can also be accumulated, representing and bearing goodwill, with economic value.
The third chapter is the core of commercial number legal protection - the right of business number. This chapter is divided into two sections. The first section is the necessity of the right of business name. The author mainly proves this necessity from the issues of legislation and practice. In the current legislation of China, the general rule of the civil law has contradictions and deviations on the qualitative rights, and the right of name of the enterprise can not satisfy the protection of the right of business name. < The existing regulations of the legitimate competition law have little effect. This leads to many practical problems. The author makes an explanation and Analysis on this, and points out the negative effects of these problems to illustrate the necessity of the clear trade name. The second section defines the right of business name. First, the author thinks that the right of business is to enjoy the business body according to the law. It also analyzes the characteristics of the right of business name. Secondly, it analyzes several main doctrines of the dispute of the right of business name, that is, the theory of personality right, the theory of property right, the compromise, and the compromise theory that represents the views of most scholars and becomes the general theory of the nature of the right of business. On this basis, it is clear that the right of business is in accordance with the characteristics of intellectual property. At the same time, the author discusses the different focus of business law and intellectual property law on the right of business name. Finally, the content of the right of business name is explained. The content of the right of business name mainly includes the right to use business, the right to special, the right to license, the right to transfer, and the right to change.
The fourth chapter is the evaluation and construction of the system. Since the acquisition of the business number is the starting point of the legal protection of the business number, it is also an important aspect of building the basic rules of the business. This is the reason for the author to pay attention to this problem. This chapter is divided into three sections. The first section about the way of obtaining the right of business names, the countries do not do the same way, usually have the use and registration. The author makes an analysis of their advantages and disadvantages, and believes that, in fact, the law does not need to stipulate that the registration of all the businesses must be registered to obtain the right of business. The registration of the business number should mainly play an important role in strengthening protection. In addition, the other unregistered trade names can be protected against the competition law to some extent. The second section is the choice of the business number and the registration of the business number. The author thinks that we should seek the balance between liberalism and realism, and choose to follow the limitation of singleness, identifiability and prohibition of confusion. The author makes a comparative study on the registration of business names. In the validity of registration, the different methods of acquisition mean that registration has different effects. The third section talks about the problems and perfection of the acquisition system of trade names in China.
The fifth chapter is the optimization of the use of business number system. The current regulations on the use of business number are not clear enough and even become an obstacle to the effective use of the right of business names. It is necessary to improve our relevant regulations on the basis of foreign rules. This chapter is divided into three sections. The first section is the rules for the use of business names. We must follow the rules of proper use and prohibit confusion. Our country should improve the relevant rules. The second section is the rule of business license. By comparing the regulations of our country and foreign countries, it points out the contradictions and shortcomings of our country's legislation, and points out that the provisions on the loan of the trade names in the Japanese and Korean commercial law indicate that the provisions of their nominal debit liability are worth it. At the same time, the paper analyzes the issue of licensing in franchising, and points out that the provisions on responsibility sharing in the United States law should be used for reference. The third section is the rule of trade name transfer. It is necessary to clear the way of transfer of business names, the main legal rules followed and the legal consequences of the resulting production.
The sixth chapter is to improve the system of business number protection. This chapter is divided into two sections. The first section is to improve the legislative protection of the business number. First, the suggestion of perfecting the model of the legislative protection of the commercial number. At the same time, the Institute has set up a special "trade number regulation". At the same time, the use of multi law coordination methods, from different angles, different levels to adjust, to play the overall effect of the legislation. Secondly, the legislative norms of the well-known trade number and old name should be strengthened. The second section is to improve the identification and relief of the tort behavior of the business. First, clear the main types of business tort. It also analyzes the consideration factors of the firm's tort; secondly, in the remedy of the tort, we can take the protection of right and the maintenance of fair competition as the most important guiding principle of relief.
【学位授予单位】：华东政法大学
【学位级别】：博士
【学位授予年份】：2011
【分类号】：D923.43
【引证文献】
相关期刊论文 前1条
1 白丹;郭帅;;商标权和商号权之冲突[J];知识经济;2012年14期
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