知识产权法中"模糊区"的清晰化探讨

Study on Definition of "Indefinite Areas" in Intellectual Property Laws

知识产权法中存在的三种类型"模糊区",给侵权认定带来了一定困难。通过对主客观两方面原因的分析可以认定,在知识产权法中存在"模糊区"是客观的、不可避免的,因此,单纯试图从立法技术的角度来达到完全消除"模糊区"的努力是不现实的。建议借鉴英美法系国家运用判例法解决"模糊区"的成功经验,赋予法官更大的自由裁量权,使其最大限度地清晰化和接近确定性。

In the Intellectual Property Laws, there are three kinds of 'indefinite areas' which bring about certain difficulties to the recognizing of tortuous actions. By analysis on the subjective and objective reasons, conclusion could be drawn that the 'indefinite areas' is objective and avoidance. Therefore any efforts to eliminate the'indefinite areas' only by means of technical measures of legislation is not practical. In this view, the successful experiences in the countries of Common Law System could be learned, according to which case adjudication is employed to resolve the 'indefinite areas' and the judges are granted with more autonomy on adjudge so as to achieve definition or even veracity as much as possible.