Research On The Legal Issues Of Social Organization Standards In China

On November 4,2017,at the 30 th meeting of the Standing Committee of the Twelfth National People's Congress,the revised draft of the Standardization Law of the People's Republic of China was adopted.The newly revised Standardization Law came into effect on January 1,2018.The newly revised Standardization Law adds 19 provisions,and adds social organization standards to the standard system composed of the original four standards:national standards,industry standards,local standards,enterprise standards.The establishment of the legal status of social organization standards can better meet the requirements of the development of socialist market economy.It is the key point for our country to transition from the old standard system to the new standard system.It is also the breakthrough for our standards to go abroad and to the world.As a new standard,the social organization standard has been implemented for a short time in China,and the legal system related to the social organization standard is not perfect.Therefore,it is necessary to conduct in-depth research on social organization standards,analyze the legal problems encountered in the formulation and implementation of social organization standards,systematically analyze the legal issues related to social organization standards that have emerged in China and those that have not yet appeared in China,but have practical experience abroad,improve the legal system related to social organization standards,and escort the development of social organization standards better.To study the legal issues of social organization standards in our country,we should first clarify the concept of social organization standards in our country and its characteristics which are different from the other four kinds standards.This paper first discusses the origin and development of social organization standards in China,and holds that social organization standards are normative,voluntary,market-oriented,flexible and open standards formulated by social organizations.On this basis,this paper explores the legal issues in the formulation,implementation and supervision of China's social organization standards,and puts forward suggestions for the healthy development of China's social organization standards.Through the study of the legal issues in the process of formulating social organization standards,it is found that besides the social organizations established according to law market participants who are related to social organization standardization activities and able to meet the principles and purposes of developing social organization standards can participate in the formulation.When the social organization standard is formulated,it may contain patents of others,which requires the formulating subject to obtain the patentee's permission.If the patentee refuses to give the permission,the social organization can seek the regulation of anti-monopoly law according to the facts.In addition to refusing permission,there are also some incomplete information disclosure issues involved in the formulation of social organization standards.Incomplete information disclosure will bring higher legal risks to the formulation and implementation of social organization standards.Therefore,the disclosure of patent information needs clearer and better procedures to protect it.Based on the practice and research at home and abroad,it is found that the legal issues involved in the implementation of social organization standards mainly focus on monopoly and intellectual property protection.On the one hand,the social organization standardization organization has a large number of members,and has the potential to occupy a dominant position in the market.The implementation of the social organization standard is relatively market-oriented,which may lead to abuse of market dominance and other monopoly actions,which need to be regulated by anti-monopoly agencies.On the other hand,the implementer may encroach on the patent right.To solve this problem,the judiciary should apply the patent infringement injunction according to the relevant provisions of stopping the civil liability for infringement in our country.Besides patent rights,copyright is also closely related to social organization standards in the protection of intellectual property rights of social organization standards.The formulation of copyright policies of social organization standards can effectively protect the rights and interests of social organization standardization organizations.In addition,in order to encourage the implementation of social organization standards,we should expand the ways to implement social organization standards.In the formulation of laws and regulations,the use of social organization standards will greatly encourage the implementation of social organization standards,thus encouraging the formulation and overall development of social organization standards.In the supervision and management of social organization standards,both government and social organization themselves play important roles.The administrative organs should supervise the formulation and implementation of social organization standards in an all-round way,including in-process supervision and after-event supervision,and through active inspection and acceptance of social complaints and reports.Clear and strict internal regulations can ensure social organizations carry out activities of standardization smoothly according to law and maintain a good market competition order.To further improve the system construction related to social organization standards in our country,we need the joint efforts of social organization,government organs and judicial departments.The social organization should formulate rigorous procedures for the formulation of social organization standards to ensure the disclosure of patent information,and formulate specific regulations for the management of social organization standards to ensure the smooth development of the work.Government organs should clarify the requirements of patent licensing in social organization standards,establish a pre-consultation system for competitive effects,and formulate rules for citing social organization standards to encourage the implementation of social organization standards.The judicial department should improve the patent abuse defense system of the social organization standard,clarify the principle of determining the illegality of monopoly in the implementation of the social organization standard,and reduce the legal risk of the social organization standard.This paper has a certain degree of innovation.Firstly,the paper discusses the constituent elements of social organization standards,including subject,content,procedure and number.Secondly,it analyses what legal risks social organization standardization organizations will encounter in the process of formulating social organization standards and how to avoid legal risks in order to protect their rights and interests from being infringed.In the implementation stage of social organization standards,the possible illegal acts of social organization standardization organizations are analyzed in detail.Finally,the rules of adopting social organization standards in Chinese laws and regulations are put forward for the first time.