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intellectual property disputes


The principles for handling intellectual property disputes refer to the basic behavioral norms that must be followed in dispute resolution activities throughout the entire process of resolving intellectual property disputes. It is the basic principle and rules for resolving intellectual property disputes, with fundamental binding force on the parties involved in the dispute and guiding role in resolving disputes. It helps to deeply understand the spiritual essence of various solutions and procedures in the process of resolving disputes, resolve various disputes fairly and promptly, and ensure that the resolution results of disputes can be cut; To fulfill. [3] 1、 The principle of taking facts as the basis and laws as the criterion To solve intellectual property disputes, facts must be taken as the basis and laws as the criterion. This is not only the starting point of the entire dispute resolution activity, but also its destination. This principle fully embodies the ideological line of seeking truth from facts and the requirements of socialist legal system, and is the most basic and core principle for resolving intellectual property disputes. Based on facts, it means seeking truth from facts, starting from reality, comprehensively and objectively determining the facts, and being loyal to the truth of the facts. This is also a prerequisite for the correct application of the law based on the principle of law. To be based on facts, it is necessary to conduct in-depth investigation and research, comprehensively and objectively collect evidence, fully listen to the statements of all parties, as well as the testimony of witnesses, and the expert opinions of the appraisers, to prevent subjective one-sidedness and bias. The collected evidence should be carefully analyzed and studied, to eliminate coarse and fine, to eliminate false and retain true, and to truly understand the time, place, cause, consequence, and causal relationship of the dispute, To enable the facts of the dispute to be "reproduced" on the basis of evidence, in order to identify the internal connections and true nature of the dispute. Taking the law as the criterion refers to accurately applying the law, distinguishing right from wrong, clarifying responsibilities, sanctioning illegal activities, protecting legitimate rights and interests, and effectively achieving compliance with the law, strict enforcement, and accountability for violations based on the investigation of facts. As the criterion of law, it includes both substantive law and procedural law. It goes without saying that substantive law is used as the basis for resolving disputes. However, there is a misconception in China that procedural law values substance over procedure. In fact, procedural law is the guarantee for the correct implementation of substantive law. Without procedural justice, the fairness of substantive law cannot be achieved. Observing procedural law is a necessary principle based on the law. Adhering to procedural law not only means that the parties and the judicial body must carry out activities in accordance with legal steps and processes, but more importantly, it is necessary to ensure that the parties can exercise their rights equally in procedural law, and that the opinions expressed by the parties can be fully respected. Only in this way can the judgment result be fair and persuasive. 2、 The principle of equal application of law by all parties The principle of "all citizens of the People's Republic of China are equal before the law" established by the Constitution of China is a concrete manifestation of the principle of equal application of law by all parties involved in resolving intellectual property disputes. Its basic meaning refers to: the legitimate rights and legitimate interests of any party in the law are equally protected by Chinese law, and any party who violates the law or commits a crime should be equally investigated and punished by law. Regardless of the differences in the profession, social status, property status, etc. of the parties involved, whether they are citizens, legal persons, or other illegal organizations, they are all equal in the application of the law. They are not allowed to have any extralegal privileges, nor are they allowed to vary from person to person. Whether they are Chinese or foreign parties, in addition to being limited by the principle of reciprocity, they are also equal in the application of the law. When any party seeks to resolve a dispute of the same nature, they should enjoy the same substantive and procedural rights. As long as the facts of the dispute are the same or similar, they should receive the same or similar legal consequences. Article 8 of the Civil Procedure Law and Article 9 of the Administrative Procedure Law are manifestations of this principle. It should be pointed out that equality is not reciprocity. In administrative litigation, the litigation rights of administrative agencies are more restricted, which is not equivalent to the litigation rights of administrative counterparts. But this does not mean inequality, on the contrary, it is precisely the necessary way to achieve equality. It is balanced with the dominant and dominant position of administrative organs in administrative relations, as well as the many rights they enjoy. 3、 The principle of balancing fairness and reasonableness Due to the complexity of intellectual property disputes, the lag in intellectual property legislation caused by rapid technological development, and the limitations of written laws themselves, laws that prioritize fairness may not necessarily bring fairness. For example, during the period after the opening of the technology market in 1985, due to the erroneous belief that intellectual property was not a property right at that time, legislation fell behind reform practice, causing many technical personnel to have wrongful cases. How to solve this contradiction, some scholars have proposed using policies as a basis to make up for the shortcomings of the law However, we believe that although policies are often the precursor of legislation and have a guiding role, they should not be used as a basis for resolving disputes. If the policy is "elevated" to law, it can naturally serve as a basis for resolving disputes, and at this point, the policy has already manifested itself as law and cannot be referred to as a basis; However, without the policy of "rising" as the law, in today's society where the policy is fully reflected in the form of law, it is often not yet perfect or lacks the necessary macro level. Moreover, the policy is timely and flexible, and therefore is also variable and unstable. Therefore, it is not suitable to use it as a basis for resolving disputes in a general sense. This is also a requirement of the socialist market economy and the rule of law society. To solve the contradiction between law and fairness, it is necessary to rely on the principle of balancing fairness and reasonableness, which is not groundless. Taking arbitration as an example. Arbitration can be divided into legal arbitration and friendly arbitration, The so-called friendly arbitration refers to the arbitral tribunal, authorized by both parties, making an award that is binding on both parties not based on strict legal rules, but on what it considers fair standards, when it believes that the application of strict legal rules would lead to unfair results. Currently, civil law countries generally recognize friendly arbitration, and Anglo American law countries and regions have also changed their previous non recognition on this issue Some looseness. Most of the international arbitration regulations applicable to international commercial affairs recognize friendly arbitration This indicates that fairness and reasonableness are regarded as one of the basis for resolving disputes internationally. It should be said that China's arbitration also takes into account the principle of fairness and reasonableness. For example, Article 53 of the Arbitration Rules of the China International Economic and Trade Arbitration Commission stipulates that the arbitral tribunal shall "independently and impartially make an award in accordance with laws and contractual provisions, referring to international practices, and following the principle of fairness and reasonableness". Article 4 of the Arbitration Law also stipulates that arbitration shall "comply with legal provisions and resolve disputes fairly and reasonably". This is undoubtedly of great reference value for other solutions to intellectual property disputes, especially negotiation and mediation. Even in more strict litigation that requires loyalty to the law, there are calls for direct application of legal principles such as the principle of good faith) to achieve fairness and reasonableness. For the application of the principle of balancing fairness and reasonableness, it should be based on the basic principles of the law and the legislative spirit, and its scope of application and specific procedural requirements should be clearly defined, so that people have a certain degree of flexibility in resolving disputes without bending the law for personal gain. It can not only strictly protect intellectual property rights in accordance with the law, but also balance fairness and reasonableness in cases or special circumstances that are obviously unfair, truly realizing the pursuit of fair value.

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