由“知识产权收益”窥探“知识产权入典”

On the “Integration of the Intellectual Property Rights into the Civil Code” from the “Intellectual Property Benefits”

《婚姻法》第十七条"知识产权收益"的模糊界定反映出物质化财产权结构在调整知识产权等新兴权利时面临的瓶颈;彭朝晖、张晓志与赛百诺公司专利权权属纠纷案,揭示了知识产权法在缺乏民法理论滋养时的畸形发展。通过审视来自传统民法领域和知识产权法领域的两个样本,知识产权法进入民法典的融合问题得以全面展现。知识产权法入典一事实属必要,当承德国民法之体系,携法国民法之精神,顾中国发展之国情,铸民知合一之新篇。求得既非链入、也非编入、实乃融入之精神内核,以图知识产权学科之发展、立法之进步、民意之觉醒,而民法典终为市民生活之集大成者。

The fuzzy definition of the ＂intellectual property benefits＂ in Article 17 of ＂Marriage Law＂ reflected the bottle- neck faced by the material structure of property rights during the adjustment of the intellectual property rights and other new- ly - developing rights. The dispute case about the patent right between Peng Zhaohui, Zhang Xiaozhi and SiBiono revealed the deformed development of the intellectual property law when it lacked the support by the theory of civil law. By exami- ning the two samples from the fields of traditional civil law and intellectual property law, we could find out the full demon- stration of the problems after the integration of intellectual property law into civil code. There was a great necessity for the intellectual property law to be included in the civil code while we followed the system of German civil law, took the spirit of French civil law, considered the situation of China＇ s development, and then molded the new piece by integrating the intel- lectual property law into the civil law. In this way, we would obtain the spirit core of the true integration between intellectu- al property law and civil law rather than their simple link or enrollment, in an effort to develop the discipline of intellectual property rights, improve the legislation, and awake the public opinion, and finally make the civil code epitomize the life of citizens.