Study On The Identification Problem Of The Country Where Protection Is Claimed Of Article 50 Of The Law Of The Application Law For Foreign-related Civil Relations

As to Article 50 of the Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China,the courts always put Article 50 on the shelf but apply the domestic intellectual property laws directly. There are many problems in identifying an important connection point “the country where protection is claimed” in the article. Sometimes they disregard the identification standard of “the country where protection is claimed” and determine the domestic law as the applicable law directly; sometimes the identification standard is not uniform, the courts make “the country where protection is claimed” walking among the lex fori,lex loci tortious and lex loci registered.These questions are consistent with the domestic trials and thinking and judicial system. "Judge but no reasoning" and the trial reform are commonplace problem in China, these ills are fully revealed in the identification of "the country where protection is claimed". The phrase’s ambiguity also adds to the difficulty of its identification. In Germany’s judicial practice,this phrase is directly recognized as the forum.Some German scholars have even called lex loci tortious coincides to lex fori in acquiescence when the phrase was designed. The America’s judicial practice uses segmented approach in identifying the ownership and infringement of intellectual property. We can learn from the foreign judicial practice critically. Courts apply Chinese laws is not appropriate when infringement does not happen in our country, even the IPR is registered in China.We should analyze specific issues.My suggestion is that the identification standard of the country where protection is claimed could be expressed as: when the country of intellectual property registered coincides with the country of infringement occurred, the country where protection is claimed can be defined as the country of intellectual property registered;when they separate, we shall apply laws of different countries in identifying the ownership and infringement respectively.The former should apply the law where IPR is registered and the latter the law where infringement happened.