The Analysis Of The Warranty For Intellectual Property Rights In International Sale Of Goods

The article 42 of the United Nations Convention on Contracts for the international sale of goods^?1?has established the seller's intellectual property security obligations of goods sold for in international sale,because this presentation is ambiguity,not expected to play a role in international trade.This paper takes the article 42 of CISG as the angle of view,through the cases study of the seller's intellectual property obligations in the international sale of goods,making an accurate interpretation of the article.This paper consists of four parts.In the introduction part,the author raises the question with a case that the breach of contract that the article 42 of CISG provides is unreasonable.Therefore,it is necessary to solve the existing problems through the empirical research.The first part elaborates the legislative purpose of the article 42 of CISG to stipulate the seller's obligation to guarantee the intellectual property rights.Through the legislative process of this article,it is found that the purpose of the legislation is to balance the interests of both parties in the international sale of goods.In order to ensure the balance of interests,the article stipulates that the seller undertakes the obligation of intellectual property rights,but also limits the scope of its obligations from two aspects of subjective and objective.This part introduces the domestic and foreign related cases,summarizes the specific practice of the judge in the trial practice.First of all,to judge whether one party's subjective cognitive state is“could not have known”,should consider whether the parties have fulfilled the obligation of investigation in different degrees;secondly,the seller needs to take the inform obligation for the buyer after signing the contract,namely to inform the buyer of the defects in the intellectual property rights of the goods to avoid further loss of the buyer;finally,according to whether exists reprocessing and the reprocessing change the original nature of the goods and the transport is known to the seller in the conclusion of the contract to determine the objective space range of the intellectual property security obligation.The second part analyzes the burden of proof of the parties in the international sale of goods.On the basis of the conclusion that the seller and the buyer bear the obligation of investigation in different degrees,the author confirms the burden of proof by the principle of"who is favorable and who gives evidence".The third part analyzes the tort liability of the seller and the buyer in the international trade of goods in violation of the obligation of intellectual property rights.Usually the party who undertakes the disadvantage of burden of proof assumes full liability for tort,but when both the buyer and seller are informed or uninformed,under these special circumstances,should in accordance with the principle of equitable sharing of tort liability.The fourth part is about the exemption of the seller's warranty obligation of intellectual property rights.On the basis of clarifying the exemption and relief,the paper puts forward the exemption causes and grounds of exemption.And finally concluded that how to apply the article 42 by cases;remove the unreasonable of the article 42,that is,when both buyer and seller are aware of the existence of intellectual property defects,the two parties bear joint and several liability,not only by the buyer bear the responsibility for infringement of intellectual property rights.The principle of fair liability is applied when both parties are unaware.