earticle

영어

Nowadays to improve the protection of the intellectual property (IP) law and codify civil law have been put forward by the Chinese government as a vital issue. Some experts and scholars have exerted an extreme influence on incorporating the IP law into the civil code, as a result the latest "General Principles of Civil Law (Draft)" embraces the IPR (intellectual property rights) as the current one which passed in 1986 and the IP law will be integrated into the final civil code, but many of them admit major discrepancies existing between them with the rapid development of science and technology. In fact the IP law has gone far away from traditional civil law system, they intrinsically stand for extricating the IP law from the civil code, however they have suffered too much from administrative power on rent-seeking in the field of the IP of China, so they are reluctant to support of incorporating the IP law into the civil code simply in order to implement “autonomy of will” which is the fundamental principle of civil law against administrative intervention in the future. This article does not follow the crowd instead of revealing the truth and arguing over the history, territory, the nature as well as the relationship between the IP law and civil law in the first chapter, beyond that, along with total 6 aspects of critical analysis on the ground principle of civil law, the mechanism of implementation, the unequal treatment, the retroactive effect, the uncertainty in different county on codification and the tendency of development from the perspective of judicial practice in the second chapter, finally the conclusion in the last chapter is the less integrating the IP law into the civil code the better.