Research On Mandatory Management

An important measure for implementing the monetary claims is mandatorymanagement, which brings about a mandatory management system. At present, thissystem has already been well established in civil law countries and regions such asGermany, Japan, Korea and China Taiwan. However, in Chinese legal system, themandatory management system has not been built up yet. The author learns that a lotof courts in China have more or less carried on exploration of the mandatorymanagement system, with some representative cases coming out. This thesis focuseson studying how to establish and perfect the mandatory management system as wellas how to fill the gaps in the mandatory management system’s application to the fieldof intellectual property.The thesis is divided into four chapters, with more than twenty-six thousandcharacters in total.ChapterⅠ: Overview of the mandatory management system. This chapterconsists of four sections, respectively expounding the meaning, classification,characteristics, and theoretical basis of the mandatory management.ChapterⅡ: The controversial issues of the mandatory management system intheory and practice. Section one elaborates rising condition. Section two analyzesobjective of the execution of the mandatory management. The author holds that theregulation of traditional mandatory management system is correct, and agrees withprofit theory. Section three analyzes the applicable scope of mandatory management,defining the real estate, more profitable movables and intellectual property as itsapplicable scope. On the basis of section two, section three discusses the reason thatthe mandatory management systems is applicable to ship and aircraft. It is notattached to the execution measures like auction, sale, mortgage etc. In considerationof protecting the rights and interests of creditors, the author believes that themandatory management can be applied to the real estate which is in use. In sectionfour, the author thinks the compulsory management of legal documents in China ruledthat appropriate form. Chapter Ⅲ: The framework of mandatory management system in China. Sectionone makes a deep analysis of mandatory management regarding its present conditionof the legislation and practice. It maintains that the mandatory management systemhasn’t been truly existed in China currently. In this section, with the combination oftwo cases in judicial practice in China, the author also deems that the verdicts madeby the execution courts in accordance with Article302of Application Judgment, someof which are just judicial custody, and some as the rising basis of mandatorymanagement program.Chapter Ⅳ: New development of mandatory management system in the field ofintellectual property.This chapter is divided into four sections. Section one analyzesand demonstrates the reason that the mandatory management system is applicable tointellectual property thoroughly. Section two explores the mandatory managementsystem in Copyright Law. It points out the three conditions for applying themandatory management to the Copyright, namely the economic right of the works, theexecution works must have been published and the execution copyright must be witha certain economic value. This section discourses the unique management proceduresin Copyright Law, and highlights the selection and duties of the management. Insection three, the author discusses the mandatory management system in Patent Law,and explains the applicable scope, unique management procedure and the power ofthe management in Paten Law. The concluding section expatiate the exception of themandatory management system in the field of intellectual property. The authorbelieves that the mandatory management is not suitable for the trademark right,mainly for protecting the consumer interests and clarifying the rights-defendingresponsibilities.