| The system of marital co-ownership of Intellectual Property Rights refers to the legal system regulating the reasonable distribution and division of the intellectual property rights generated during the existence of the marital relationship between husband and wife,which specifically covers the distribution of the marital intellectual property rights,the income distribution of the marital intellectual property rights and the divorce division of the marital intellectual property rights.Generally,the establishment of the conjugal intellectual property system involves two distinct legal relationships:(1)The conjugal relation refers to the status relationship formed by the legal combination of man and woman,including the personal relationship between husband and wife and the property relationship between husband and wife.In essence,the property relationship between husband and wife is attached to the personal relationship between husband and wife,that is,the personal relationship between husband and wife determines the generation and existence of the property relationship between husband and wife.(2)Intellectual property relationship refers to the rights and obligations enjoyed by the creator or investor in accordance with the law on the copyright,patent right,trademark right and other intellectual property rights created or invested by the creator or investor,including personal relationship and property relationship.While in the legislation of intellectual property law system,all kinds of intellectual property rights legislation,such as copyright,patent,trademark and other intellectual property rights of the exclusive rights in a clear area can be divided into personal rights and property rights are not unified,but it is undeniable that in the relationship,such as copyright,patent,trademark,also as a couple,The property relation is attached to the personal relation,that is,the personal relation is the legislative basis of the property relation.Therefore,the coordination of the relationship between husband and wife and the relationship between intellectual property is the core context of the establishment of the system of marital co-ownership of Intellectual Property Rights,and is also the key of this thesis.Driven by modern science and commodity economy,the legalization of intellectual property has brought about the "dematerialization revolution" of property,which is a profound institutional innovation and reform in the field of property since the Roman law.Therefore,marriage legislation should respond to the development and reform of property rights system in time,so as to make systematic and fair arrangements for intellectual property rights,a new type of property rights.The evolution of system of marital co-ownership of Intellectual Property Rights can be divided into the following three stages in China’s legislation:(1)The creation stage of judicial interpretation,in 1993 the Supreme People’s Court of the people’s court divorce cases opinions on some specific deals with the problem of division of property,which was not officially repealed until 1 January 2021 with the entry into force of the Civil Code.(2)The stage of inheritance and reform of marriage law,according to the 2001 Decision of the Standing Committee of the National People’s Congress on amending the Marriage Law of the People’s Republic of China and the 2003 Interpretation of the Supreme People’s Court on Some Issues concerning the Application of the Marriage Law of the People’s Republic of China,the above provisions were not officially abolished until January 1,2021,when the Civil Code came into force.(3)The succession and amendment stage of the Civil Code,according to the Civil Code of the People’s Republic of China adopted by the National People’s Congress in 2020 and the Interpretation of the Supreme People’s Court on the Application of the Marriage and Family Section of the Civil Code of the People’s Republic of China in 2020,the above provisions will come into effect on January 1,2021.According to the sorting,the current system of marital co-ownership of Intellectual Property Rights has the following characteristics in legislation:(1)The distribution of conjugal intellectual property is exclusive.(2)The income distribution of conjugal intellectual property is separable.(3)The income distribution of conjugal intellectual property is also unbalanced.(4)The divorce division of conjugal intellectual property is more oriented to the profit division or monetary compensation of intellectual property,and rarely involves the transfer of intellectual property from the creator to the other party due to the direct division of conjugal intellectual property.In jurisprudence,the theory of fairness and justice,the theory of balance of interests,the theory of law and economics,the theory of women’s rights protection and the theory of gender innovation can provide theoretical support for the establishment of the system of marital co-ownership of Intellectual Property Rights and demonstrate the legitimacy of its legislation.Firstly,according to the theory of fairness and justice,the establishment of system of marital co-ownership of Intellectual Property Rights should not only satisfy the formal justice that intellectual property legislation stimulates creators or investors,but also satisfy the substantive justice that marital joint property legislation stimulates cooperation,risk sharing and benefit sharing between husband and wife.Secondly,according to the theory of interest balance,the conjugal intellectual property system should not only maintain the survival rights and interests of the couple and promote the internal balance of the protection of their personal interests,but also coordinate the needs of social life and development and promote the external balance of the pursuit of social public welfare.Thirdly,according to the theory of law and economics,from the production efficiency of conjugal intellectual property,conjugal intellectual property system should not only guarantee the value return of intellectual capital of knowledge workers,but also guarantee the value return of human capital of collaborators in the production of knowledge products.In addition,from the perspective of the efficiency of the use of conjugal intellectual property,the conjugal intellectual property system should also try to reduce the search cost,negotiation cost and contract performance cost in the circulation of conjugal intellectual property.Fourthly,according to the theory of the protection of women’s rights,establishment of the conjugal intellectual property system should also assume the corrective function of the protection of women’s rights under the realistic background.Finally,according to the gender innovation theory,the system of social gender mainstreaming into constructing auxiliary often necessary to the contemporary knowledge economy healthy and rapid development,the intellectual property system of husband and wife couple on the one hand to cope with current intellectual property legislation mode of production and the gender gap to conduct a comprehensive overview of the analysis,On the other hand,we should examine whether the existing norms can truly realize the substantive justice and formal justice in the distribution of intellectual property rights between men and women.Compared with China,the relevant legislation and practice of the United Kingdom,The United States,France,Germany,Italy and Russia have a longer history and richer practical experience in the establishment of the conjugal intellectual property system,which can provide useful legislative comparison and innovation experience for the establishment of the conjugal intellectual property system in China.In general:(1)in theory,the fair justice is the six nations the value of the conjugal intellectual property system,on which the formal justice not only requires the conjugal intellectual property system should coordinate with the marriage law of the intellectual property law standard system,and requirements in the substantial justice of the conjugal intellectual property system should be balanced on both sides of husband and wife in the marriage and family real contribution.(2)In practice,the dichotomy between the exclusive right and usufruct of the conjugal intellectual property is the absolute mainstream path adopted by the legislation of the six countries in the establishment of conjugal intellectual property system.Due to intellectual property legislation system for the creator of the main body personality special attention,regardless of what kind of marriage system applies,in accordance with the intellectual property rights legislation enjoy the exclusive rights of the conjugal intellectual property can only belong to the creator of one party all alone,however,this does not mean that the other party can’t get any economic benefits from the conjugal intellectual property.From the perspective of the legislative norms of various countries,they all happen to stipulate that the property benefits generated by conjugal intellectual property rights can be applied to the marriage law rule system.In addition,we should also pay attention to the fact that in the first cases dealing with disputes over the distribution of intellectual property rights between husband and wife in the United States,another practical path was created,which directly regarded the ontology of the intellectual property rights of husband and wife rather than the income as the object of the joint property.However,this approach is not only widely discussed and questioned at home and abroad,but also replaced by the dichotomy between the exclusive right and the usufruct adopted by the American court.From beginning to end,our country’s legislation of the conjugal intellectual property system adopt a couple of exclusive rights and earnings of the intellectual property of binary strategy,but in the actual running effect,it gives birth to violate system of jurisprudence and unbalanced result of world trend,this is mainly due to the judicial practice lasted for more than twenty years in the past,the legislative,judicial usurpation It makes irrational limitation to the relevant norms of marriage Law and civil Code.In practice,this irrational restriction has the following defects:(1)in the system of private rights,it promotes the deviation of intellectual property rights from the property rights of civil law;(2)In the context of The Times,it lags behind the change of the status of intellectual property in wealth;(3)in terms of distributive justice,it damages the legitimate rights and interests of the non-creator of the husband and wife’s intellectual property rights;(4)in terms of economic efficiency,it restrains labor cooperation between non-creators of conjugal intellectual property rights;(5)In terms of legislative ethics,it violates the substantive justice of the distribution of intellectual property interests between husband and wife;(6)In terms of gender innovation,it ignores the function of gender mainstreaming paradigm.Therefore,this thesis suggests that China’s current system of marital co-ownership of Intellectual Property Rights should be improved in the judicial interpretation as follows:(1)abolishing the limited judicial interpretation of the joint benefits of marital intellectual property.(2)establishing an unlimited joint judicial interpretation of the proceeds of intellectual property between husband and wife.(3)refining the rules of divorce division of the intellectual property rights of the husband and wife that have not yet generated income at the time of divorce. |
