The Partition Of Intellectual Property Rights In The Divorce Litigation

With the change of the social concept of marriage, the divorce rate is rising yearby year, causing a lot of divorce proceedings. For divorce proceedings, the key ishow to fair and reasonable dividing the common property of husband and wife, Butas scientific progress and economic development, not only bring the diversificationof material life, the property type is more and more diversified and complicated.Especially as the country on the strengthening of intellectual property protection andthe continuous development of science and technology, more and more people beginto own and enjoy the intellectual property rights, and have gained great wealth. Atthe same time, intellectual property is considered to be a the common property of thefamily property in1993"the Supreme Court of the people’s court divorce casesopinions on some specific deals with the problem of division of property", and withthe development of The Times, intellectual property rights become an important partof the common property of husband and wife. So it has important significance in theresearch of marital property ownership of intellectual property and the propertyincome segmentation problem. Solve the divorce proceedings for intellectualproperty rights caused by the disputes will be the focus of this study. On at presentour country’s current legislation, the husband and wife divorce proceedings onintellectual property rights and benefit segmentation problem, laws and regulationsis not too much. For the problem of intellectual property ownership is relativelycomplex, the current legislation has adopted an evasive attitude. For intellectualproperty benefit segmentation, at present only rules on intellectual property incomeduring the marriage as the common property of husband and wife, and for thedivorce has not obtained the economic interests of intellectual property rights, isowned by one party, on the other side to take care of appropriately. The regulation ofthese is so thin that can’t entirely suitable for complex divorce of social life thatmakes some divorce disputes and didn’t get a fair and reasonable solution, this waydeepened the contradiction between the husband and wife and can’t conducive to thebuilding of a harmonious society. Intellectual property rights as a special type of family property. First of allintellectual property rights is a kind of intangible property, relative to other tangibleproperty, it’s so difficult to determine the intellectual property rights of property value;Secondly intellectual property is a kind of property rights is also a kind of personalrights, this characteristic makes it hard to determine its ownership. The currentintellectual property legislation thought it has the very strong personal subjunctive,so it can’t be divided. As a result, it is difficult to determine the ownership of theintellectual property in the divorce lawsuit. This article main discussion is focusedon segmentation of property rights of intellectual property rights, although theintellectual property rights has personal subjunctive, but it does not affect the rightsof intellectual property in divorce proceedings. Aimed at some problems in theintellectual property division in divorce proceedings, through comparative study andempirical research method, this article hopes to be able to solve the intellectualproperty division in divorce proceedings of several problems. The first need to solvethe problem of intellectual property rights in the marital property belongs; Thesecond is to define the scope of intellectual property rights in marital property; Thethird is the intellectual property division in divorce proceedings principles andstandards. In this paper, by analyzing the present situation of the current legislation,combined with the related problems of the judicial practice, and find out thedeficiencies and defects in the legislation, in order to put forward a relatively perfectlegislation idea solve the problem of intellectual property rights of property divisionin divorce proceedings. This paper hopes to deal with various complex divorce casesin judicial practice without prejudice to the intellectual property rights under thepremise of incentive system. Its purpose is to protect the legitimate rights andinterests of both sides of husband and wife in the divorce proceedings, and reducethe contradiction and the dispute because of the division of intellectual propertyrights gains and promote the establishment of a harmonious society.