知识产权纠纷调解机制研究
发布时间：2018-07-17 19:36
【摘要】：本文关注的焦点是,在建设创新型国家与构建和谐社会的背景下,面对现行知识产权纠纷解决机制的困境,如何构建能凸显知识产权纠纷特殊性的纠纷分流与调解机制,以妥善、高效解决知识产权纠纷。 在全球化时代,知识产权激励创新的功能日益凸显;知识经济时代,知识产权成为国家核心竞争力的源泉。相应地,知识产权人由注重权利保护转向更多关注权利的经营与管理战略。作为私权的知识产权,是权利人可以自由支配、处分的权利;作为无形财产权的知识产权,具有法定性、无形性与有期限性等特征。这些区别于传统民事权利的特性是研究知识产权纠纷解决机制的起点。 由于知识产权纠纷的专业性与技术性,民间调解与仲裁等非讼解决方式较少被采用,诉讼成为解决知识产权纠纷的主要渠道。而在诉讼中,侵权人常常以请求宣告权利无效来对抗权利人,这就形成民事纠纷与行政纠纷的交叉,民事程序势必要中止,而需等待行政程序的结果,这使得知识产权诉讼程序冗长。在绝大多数纠纷依赖诉讼渠道解决的情况下,冗长的诉讼程序却难以高效化解日趋增长的知识产权纠纷。 为缓解日益增长的审判压力,提高纠纷解决的效率;也为践行“和谐社会”理念与“司法为民”的司法政策,我国法院前所未有地重视知识产权纠纷的诉讼调解。“全程调解”和“全员调解”也成为诸多法院所总结的“经验”,调解率被纳入法官与法院考核指标体系则是其异化到极致的体现。实践中,法官难以把握“调解者”与“审判者”的角色定位;而且,由于存在自身利益追求,法官难免隐秘地“以劝压调、以拖压调、以判压调、以诱压调”。因此,诉讼调解悖离了调解的中立性本质。 由上可见,诉讼与非讼方式的难以有效协调运行,知识产权纠纷多元化解决机制并未合理构建。这虽然有知识产权纠纷自身特殊性的原因,但根本原因在于我国当下的知识产权纠纷解决机制是从纠纷客体出发建构的,较少关注当事人因素对纠纷解决的影响。而纠纷解决是消除当事人之间利益冲突的过程,实际上是当事人利益博弈的过程。因此,如果不以当事人为出发点,就无法找到不同个体间纠纷的共同规律,也就无法合理分流纠纷并配置恰当的解决方式。这就有必要考量当事人因素对纠纷解决方式选择的影响。根据博弈论分析当事人基于利益诉求而选择的行为策略,较之基于纠纷本身的法律分析更能把握纠纷解决的关键,也能明确冲突的焦点。 知识产权纠纷中,权利人利益目标具有多元性,有的追求基本利益(实现知识产权的价值),有的追求对抗性利益(禁止他人使用),有的追求双重利益结合;侵权人亦是如此。据此可将知识产权纠纷划分为三大类型:当事人利益相似性好的A类纠纷、当事人利益相似性较好的B类纠纷与当事人利益相似性差的C类纠纷。 知识产权纠纷解决机制运行中纠纷需经两次分流,第一次分流是由权利人选择或当事人约定进入调解、仲裁或诉讼程序;第二次分流则是纠纷经权利人选择进入诉讼程序后,以当事人预期利益目标为基础将纠纷类型化,进而配置相应的纠纷解决方式,将现行的诉讼调解从诉讼中剥离,纳入法院附设的仲裁—调解程序。通过纠纷的两次分流,促成当事人从“非零和博弈”视角解决纠纷,构建高效的知识产权纠纷调解机制。 知识产权纠纷调解机制的构建,应紧扣时代背景,处理好非讼与诉讼的辩证关系,不妨碍当事人的选择权。知识产权纠纷调解应坚持当事人自主、调解员中立、调解协议合法与合作双赢的原则。调解的成功运用离不开调解规则与规律的恰当把握。
[Abstract]:The focus of this article is that, in the context of building an innovative country and building a harmonious society, in the face of the plight of the existing intellectual property dispute resolution mechanism, how to build a dispute diversion and mediation mechanism that can highlight the particularity of intellectual property rights disputes, so as to properly and efficiently solve the dispute of knowledge production rights.
In the era of globalization, the function of intellectual property incentive and innovation has become increasingly prominent; intellectual property rights become the source of national core competitiveness in the era of knowledge economy. Accordingly, intellectual property owners turn from rights protection to more rights management and management strategies. As the intellectual property rights of private rights, the right holders can freely control and dispose of the rights. As an intangible property right, intellectual property has the characteristics of legality, invisibility and duration, which are different from the characteristics of traditional civil rights as the starting point for the study of the dispute settlement mechanism of intellectual property rights.
Because of the professionalism and technical nature of intellectual property disputes, non litigation solutions such as civil mediation and arbitration are seldom adopted, and litigation has become the main channel for solving intellectual property disputes. In litigation, the tortfeasor often claims to declare the right ineffective against the right holder, which forms a cross between civil and administrative disputes, and the civil procedure is a civil procedure. It is bound to stop and wait for the results of the administrative procedure, which makes the intellectual property litigation procedure lengthy. In the case of the overwhelming majority of disputes depending on the litigation channels, the lengthy procedure is difficult to efficiently resolve the growing intellectual property disputes.
In order to alleviate the increasing trial pressure, improve the efficiency of dispute resolution, and to practice the "harmonious society" concept and the judicial policy of "judicature for the people", the court of our country attaches great importance to the litigation mediation of intellectual property disputes. "Whole mediation" and "full mediation" have also become the "experience" summed up by many courts, the rate of mediation. In practice, the judge is difficult to grasp the role of the "mediator" and the "adjudicator" in practice. In addition, because of its own interests, the judge can not avoid the secret "to persuade the press, to drag and press, to judge the pressure, to lure the pressure". Therefore, the litigation mediation is contrary to the law. The nature of neutrality of mediation.
It is difficult to effectively coordinate the operation of litigation and non litigation, and the diversified solution mechanism of intellectual property disputes is not reasonably constructed. Although there are reasons for the particularity of intellectual property disputes, the fundamental reason is that the current dispute settlement mechanism of intellectual property rights in China is constructed from the object of the dispute, and less attention is paid to the parties. The dispute settlement is the process of eliminating the conflict between the parties. In fact, it is the process of the game of the interests of the parties. Therefore, if the party is not the starting point, it is impossible to find the common law of the different individual disputes, and it will not be reasonable to divide the disputes and to configure the appropriate solution. It is necessary to examine the influence of the parties on the choice of the dispute resolution. According to the game theory, the party's behavior strategy based on the interest demands is more important than the legal analysis based on the dispute itself, and the focus of the conflict can be clearly defined.
In intellectual property disputes, the interests of the right holders are pluralistic, and some pursue the basic interests (the value of intellectual property), some pursue the antagonistic interests (prohibit the use of others), and some pursue the combination of double interests, and the infringers can also be divided into three types: a good A of the interests of the parties. B disputes with similar interests and similar interests between the parties have similar C disputes.
In the operation of the dispute settlement mechanism of intellectual property rights, the dispute needs to be divided by two times. The first diversion is the choice of the right holder or the parties' agreement to enter the mediation, arbitration or litigation procedure; the second diversion is a dispute typed on the basis of the prospective interests of the parties, and then the corresponding allocation is made after the right person has chosen to enter the procedure. The dispute settlement method will remove the current litigation mediation from the lawsuit and bring into the arbitration and mediation procedure attached by the court. Through the two diversion of the dispute, the parties can solve the dispute from the perspective of "non zero sum game" and construct an efficient mediation mechanism of intellectual property disputes.
The construction of the mediation mechanism of intellectual property disputes should be closely linked to the background of the times, deal with the dialectical relationship between non litigation and litigation, and do not interfere with the right of the parties. The mediation of intellectual property disputes should adhere to the principle of the autonomy of the parties, the neutrality of the mediator and the win-win of the legal and cooperation of the mediation agreement. The successful application of the mediation should not be separated from the rules and laws of mediation. Be sure.
【学位授予单位】：湘潭大学
【学位级别】：博士
【学位授予年份】：2008
【分类号】：D915.2;D913
本文编号：2130716
[Abstract]:The focus of this article is that, in the context of building an innovative country and building a harmonious society, in the face of the plight of the existing intellectual property dispute resolution mechanism, how to build a dispute diversion and mediation mechanism that can highlight the particularity of intellectual property rights disputes, so as to properly and efficiently solve the dispute of knowledge production rights.
In the era of globalization, the function of intellectual property incentive and innovation has become increasingly prominent; intellectual property rights become the source of national core competitiveness in the era of knowledge economy. Accordingly, intellectual property owners turn from rights protection to more rights management and management strategies. As the intellectual property rights of private rights, the right holders can freely control and dispose of the rights. As an intangible property right, intellectual property has the characteristics of legality, invisibility and duration, which are different from the characteristics of traditional civil rights as the starting point for the study of the dispute settlement mechanism of intellectual property rights.
Because of the professionalism and technical nature of intellectual property disputes, non litigation solutions such as civil mediation and arbitration are seldom adopted, and litigation has become the main channel for solving intellectual property disputes. In litigation, the tortfeasor often claims to declare the right ineffective against the right holder, which forms a cross between civil and administrative disputes, and the civil procedure is a civil procedure. It is bound to stop and wait for the results of the administrative procedure, which makes the intellectual property litigation procedure lengthy. In the case of the overwhelming majority of disputes depending on the litigation channels, the lengthy procedure is difficult to efficiently resolve the growing intellectual property disputes.
In order to alleviate the increasing trial pressure, improve the efficiency of dispute resolution, and to practice the "harmonious society" concept and the judicial policy of "judicature for the people", the court of our country attaches great importance to the litigation mediation of intellectual property disputes. "Whole mediation" and "full mediation" have also become the "experience" summed up by many courts, the rate of mediation. In practice, the judge is difficult to grasp the role of the "mediator" and the "adjudicator" in practice. In addition, because of its own interests, the judge can not avoid the secret "to persuade the press, to drag and press, to judge the pressure, to lure the pressure". Therefore, the litigation mediation is contrary to the law. The nature of neutrality of mediation.
It is difficult to effectively coordinate the operation of litigation and non litigation, and the diversified solution mechanism of intellectual property disputes is not reasonably constructed. Although there are reasons for the particularity of intellectual property disputes, the fundamental reason is that the current dispute settlement mechanism of intellectual property rights in China is constructed from the object of the dispute, and less attention is paid to the parties. The dispute settlement is the process of eliminating the conflict between the parties. In fact, it is the process of the game of the interests of the parties. Therefore, if the party is not the starting point, it is impossible to find the common law of the different individual disputes, and it will not be reasonable to divide the disputes and to configure the appropriate solution. It is necessary to examine the influence of the parties on the choice of the dispute resolution. According to the game theory, the party's behavior strategy based on the interest demands is more important than the legal analysis based on the dispute itself, and the focus of the conflict can be clearly defined.
In intellectual property disputes, the interests of the right holders are pluralistic, and some pursue the basic interests (the value of intellectual property), some pursue the antagonistic interests (prohibit the use of others), and some pursue the combination of double interests, and the infringers can also be divided into three types: a good A of the interests of the parties. B disputes with similar interests and similar interests between the parties have similar C disputes.
In the operation of the dispute settlement mechanism of intellectual property rights, the dispute needs to be divided by two times. The first diversion is the choice of the right holder or the parties' agreement to enter the mediation, arbitration or litigation procedure; the second diversion is a dispute typed on the basis of the prospective interests of the parties, and then the corresponding allocation is made after the right person has chosen to enter the procedure. The dispute settlement method will remove the current litigation mediation from the lawsuit and bring into the arbitration and mediation procedure attached by the court. Through the two diversion of the dispute, the parties can solve the dispute from the perspective of "non zero sum game" and construct an efficient mediation mechanism of intellectual property disputes.
The construction of the mediation mechanism of intellectual property disputes should be closely linked to the background of the times, deal with the dialectical relationship between non litigation and litigation, and do not interfere with the right of the parties. The mediation of intellectual property disputes should adhere to the principle of the autonomy of the parties, the neutrality of the mediator and the win-win of the legal and cooperation of the mediation agreement. The successful application of the mediation should not be separated from the rules and laws of mediation. Be sure.
【学位授予单位】：湘潭大学
【学位级别】：博士
【学位授予年份】：2008
【分类号】：D915.2;D913
【引证文献】
相关期刊论文 前1条
1 王莲峰;张江;;知识产权纠纷调解问题研究[J];东方法学;2011年01期
相关博士学位论文 前1条
1 董舒翼;通信业知识产权发展影响因素研究[D];北京邮电大学;2011年
相关硕士学位论文 前4条
1 杨硕;论知识产权纠纷中法院附设替代性纠纷解决机制的运用[D];郑州大学;2011年
2 孙那;论我国商业标识的权利冲突及其解决[D];中国青年政治学院;2012年
3 汪铃添;成都高新区创业软环境评价研究[D];西南交通大学;2011年
4 颜艳;商标纠纷调解制度研究[D];湖南师范大学;2012年
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