The Goodwill Right And Its Legal Protection

Goodwill is a frequently used conception in our economic practice, with the set-up and improvement of our commodity economy, the goodwill become more important than ever. A full legal protection of goodwill is not only very important to the subject of business but also helpful for the economic development. But the legal protection of goodwill in our nation is ineffective, and the plaintiff often can not get full remedies when their goodwill right is infringed. Beginning with the study of the conception of goodwill, I analyze various theories relevant to the attribute of goodwill right and suggest that the essential attribute of goodwill right is a right of property, and the infringement of goodwill can be divided into two types. Based on the classification, I research the relevant legal system in other nation and region. Finally, I analyze the legal protection system of goodwill right of our nation, and point out the defect, then, I put forward my suggestion.My thesis falls into four section.In the first section, I study the conception of goodwill from a standpoint of accountancy and law, and research the origin of the conception, and enumerate all kinds of theories relevant to the attribute of goodwill right, I hold that the goodwill right is a property, to argue my view, I put forward my arguments. Then I compare the goodwill right to the credit right, honor right and the trademark right.In the second section, I firstly analyze the role of goodwill right played in the market-economy and the importance of goodwill right for the subject of business, then I divide the infringement of goodwill right into two type: one is directinfringement, another is indirect infringement, and then, I define the relationship between commercial defamation and commercial disparagement by semantic analysis. Enumerate the common commercial disparagement finally.In the third section, I investigate the legal protection system of the goodwill right in other nation, other region and in international organization. Neither Anglo-American law system nor continent law system defined the attribute of goodwill right. The two legal system and World Intellectual Property Organization protect the goodwill right by passing-off law, dilution law and commercial disparagement law. And provision is available in tort law of Anglo-American law system and anti-unfair competition law of continent law system.In the forth section, I analyze the deficiency of provision relevant to the legal protection of goodwill, point out that the problem in our civil law is we use protect the goodwill right by means of civil reputation protection., as a result, we meet some problems both in legal logic and in legal practice, and the damages is not enough for the plaintiff to cover his loss. There are some deficiencies in our also: we define the infringement as fabricating or disseminating "falsehood", the civil responsibilities, administrative responsibilities and criminal responsibilities is undefined, the method of damages evaluation is unreasonable.On my opinion, It's primarily to define goodwill right as a property right, we should viewed it as a property right in the practice even if its attribute is undefined in our civil law. We should realize both the direct infringement and the indirect infringement are injurious to goodwill right. In regard to direct infringement, we should realize both "falsehood" and "improperly claims" are injurious. In view of the property attribute of the goodwill, the primary remedy to goodwill is damages, so, the improvement of evaluation of damages is very important.