论知识产权侵权法律适用中的意思自治原则

On the Principle of Will Autonomy in the Practice of Law of Intellectual Property Infringement

跨国贸易和互联网的发展,在实现知识产权全球性交流互通的同时,也凸显了知识产权侵权领域的法律冲突问题。传统地域性特征引发的政策利益考量,以及传统知识产权法律适用规则的惯性思维,使该领域的意思自治原则长期遭受不必要争议,只在少数国家得到采纳。然而,知识产权侵权领域当事人选法自主性的发挥,不仅有利于增强法律适用确定性与讼争实体结果可预见性,更提升规则适用的程序性效益。新近国际软法规则对此有不同程度的接纳,在事项范围、选法时间、第三人和弱者利益的保护等方面的适用限制各有所见。当前,我国实行有限意思自治原则,为进一步完善规则设定,有必要放宽在预先存在长期相对法律关系等特殊情形下的事前选法限制,将先存关系准据法纳入选法范围,并引入禁止减损第三人权益、保护弱者利益等必要保护规则。

With the development of international trade and internet,there emerges the global exchange of intellectual property and there are also legal conflict issues of intellectual property infringement.In view of public interest caused by traditional geographical features and the inertia caused by traditional choice of law rules,the will autonomy principle in intellectual property infringement has been always under unnecessary controversy for a long time and until now it has only been adopted in a couple of countries.However,will autonomy in choice of law in intellectual property infringement is not only beneficial to guarantee the certainty and predictability of choice of law but also helpful to improve the efficiency of application of law.Some international soft laws which emerged recently have given enough importance to this principle,but there are different opinions in regard to the scope of that principle,the time of choice of law and the protection of the interests of the weaker party and the third party.At present,China carries out limited will autonomy and in order to further improve related rules,it is necessary to ease restrictions on parties'autonomy in some special cases such as when there has already existed some long-term relationship between the parties before the tort arises.In order to ease the restrictions on parties'autonomy,it should be possible for the parties to choose the applicable law of the pre-existing relationship as the applicable law of the tort,and it is also necessary to introduce some provisions to prevent the infringement upon the legal rights and interests of the third party and the weaker party.