知识产权海关保护引入调解制度、明晰和解制度之思

Thoughts on the Acceptance of Mediation System and Clarification of Reconciliation System within the Customs Protection of Intellectual Property Rights

现行《知识产权海关保护条例》及其实施办法,仅以准予"权利人撤回扣留申请"的方式保留了和解空间,调解制度则未见纳入。而现有相关研究则多聚焦整体重构海关知识产权保护执法依据与模式,更多关注制度设计原则而非制度运行规则。鉴于此,本文从分析多重迫切的执法需求入手,结合比较海关法和公私权利益平衡考量,探讨调解与和解制度的同步引入与区分运行的制度原则,探讨提出自愿合法基础上的有限调解与有限和解、调解及和解与调查认定程序并行、调解与调查适度分离、允许并案调解等具体规则,并立足行政执法资源现状,相应提出对配套措施的优化建议。

The current system of Customs protection of Intellectual Property Rights(IPRs)only provides a general concept of reconciliation known as"right-holder's application to withdraw detention",while the mediation system has never been taken into consideration.However,the current researches often concentrate more on the reconstruction of the basis and mode of Customs protection of IPRs,or emphasize the principles rather than regulations in the process of systematic research.In view of this,this paper starts with an analysis on several imperative demands of law enforcement,and then investigates simultaneous introduction and separate utilization of mediation and reconciliation through a comparative study on Customs legislations as well as the balance of interests between public power and private rights.In addition,this paper probes into institutional arrangements including limited mediation and reconciliation based on the voluntary and legal principle,concurrence of mediation,reconciliation and Customs investigation,appropriate separation between mediators and law enforcement officials,and mediation applied to combined cases.Finally suggestions are put forward on how to optimize relative measures on the basis of present status of administrative enforcement.