經(jīng)濟(jì)學(xué)視角下對版權(quán)貿(mào)易中平行進(jìn)口立法取向的探析
發(fā)布時間：2019-04-08 09:39
【摘要】：隨著全球經(jīng)濟(jì)一體化進(jìn)程的加快發(fā)展并伴隨著知識經(jīng)濟(jì)時代的到來,涉及一國政治、經(jīng)濟(jì)、文化、科技等各個層面的版權(quán)貿(mào)易已經(jīng)成為現(xiàn)代國際貿(mào)易發(fā)展中的重要內(nèi)容,在國際交往日益頻繁的今天,其地位日益突出,越來越受到各國的重視。 版權(quán)貿(mào)易的平行進(jìn)口是伴隨著版權(quán)貿(mào)易的出現(xiàn)而產(chǎn)生的知識產(chǎn)權(quán)問題,它涉及到法律、經(jīng)濟(jì)、政治等各領(lǐng)域,并牽涉到版權(quán)人、進(jìn)口國授權(quán)經(jīng)銷商、版權(quán)貿(mào)易平行進(jìn)口商、進(jìn)口國消費者等多個相關(guān)利益主體以及版權(quán)作品平行進(jìn)口的國家的社會福利,因此自版權(quán)貿(mào)易平行進(jìn)口行為出現(xiàn)起,國際上對有關(guān)其立法取向應(yīng)如何判定的爭議就從未停止。爭議的實質(zhì)貿(mào)易自由化趨勢下對版權(quán)如何保護(hù)及保護(hù)程度的問題。 目前,國際上涉及此問題的國家法律以及國際公約對版權(quán)貿(mào)易平行進(jìn)口行為的判定都不盡相同,有些甚至截然相反,這必然給國際文化貿(mào)易的和諧深入發(fā)展帶來不利影響。而對國際貿(mào)易中某些行為的法律判定,特別是在國際上具有爭議的貿(mào)易行為,如何科學(xué)準(zhǔn)確地預(yù)測未來對此問題的統(tǒng)一立法取向?qū)τ谇罢靶缘赝晟茋鴥?nèi)相關(guān)法律,提前避免或應(yīng)對未來國際貿(mào)易中出現(xiàn)的摩擦和糾紛具有不可估量的重大意義。因此,從長遠(yuǎn)發(fā)展來看國際版權(quán)貿(mào)易交流將會日益頻繁,也許在未來因版權(quán)貿(mào)易平行進(jìn)口行為而出現(xiàn)的新情況新問題會越來越多,需要盡快在國際范圍內(nèi)確立對此行為統(tǒng)一的立法取向,并依據(jù)國際統(tǒng)一的立法取向,積極完善一國國內(nèi)相關(guān)法律。一方面有利于從法律上充分保護(hù)本國相關(guān)權(quán)益主體的正當(dāng)利益,使相關(guān)權(quán)益主體獲得穩(wěn)定的行為預(yù)期,減少貿(mào)易中可能存在的風(fēng)險；另一方面可以保證在權(quán)益人遇到涉此問題的國際糾紛時,能夠做到有法可依,鼓勵權(quán)益人積極地應(yīng)對版權(quán)貿(mào)易中因平行進(jìn)口問題產(chǎn)生的摩擦和糾紛,為未來該國文化貿(mào)易的發(fā)展提供了法律的保證。 然而對于版權(quán)貿(mào)易平行進(jìn)口行為的性質(zhì)為何、立法取向如何判定等一系列問題,很多學(xué)者也都對此進(jìn)行過研究,但由于這一問題表現(xiàn)的相對復(fù)雜性及研究方法的局限性,至今仍沒有提出具有說服力的判定結(jié)果。目前僅有的針對版權(quán)貿(mào)易平行進(jìn)口問題的探討多是集中于從法學(xué)理論方面進(jìn)行的推理論證,但是對這種牽涉到多方利益的復(fù)雜問題單純從法律層面研究難以突破有關(guān)知識產(chǎn)權(quán)理論的法律局限。因此,通常陷入“見仁見智”的困境之中,至今在國際上仍沒有形成統(tǒng)一的立法取向。 鑒于上述情況,本文試圖跳出以往對國際貿(mào)易中版權(quán)貿(mào)易平行進(jìn)口問題立法取向的判定單純從法學(xué)視角來論證的思路,轉(zhuǎn)而主要從經(jīng)濟(jì)學(xué)的相關(guān)理論和研究方法對此問題進(jìn)行分析論證,借助博弈分析和構(gòu)建經(jīng)濟(jì)學(xué)模型進(jìn)行數(shù)理推導(dǎo)等經(jīng)濟(jì)學(xué)常用方法進(jìn)行深入分析,再輔以對國家立法趨勢的預(yù)測以及利益均衡下的利益取舍,站在國家社會福利最大化的角度并盡可能的維護(hù)各權(quán)益主體的正當(dāng)利益不受侵犯,從理性和公平的雙重角度最終確定具有說服力立法取向,并在此基礎(chǔ)上提出適合我國的法律的構(gòu)想。 對我國來說,由于受我國國情以及相關(guān)貿(mào)易政策的影響,版權(quán)貿(mào)易平行進(jìn)口行為目前并不十分突出。但在未來隨著我國加入WTO后貿(mào)易地位日益提高,版權(quán)作品的進(jìn)出口貿(mào)易量將會快速增長,再加之關(guān)稅大幅下降,可以預(yù)測有關(guān)版權(quán)領(lǐng)域的平行進(jìn)口糾紛可能會呈現(xiàn)愈發(fā)增加的趨勢。因此,結(jié)合對未來國際立法趨勢的判斷,從理性和公平的角度做出具有說服力的立法判定,前瞻性地修訂和完善我國涉及版權(quán)貿(mào)易平行進(jìn)口的相關(guān)法律,這對于我國未來積極應(yīng)對版權(quán)貿(mào)易中可能出現(xiàn)因平行進(jìn)口行為而產(chǎn)生的貿(mào)易摩擦,具有重大的現(xiàn)實意義。
[Abstract]:With the rapid development of the global economic integration process and with the coming of the age of the knowledge economy, the copyright trade involving a country's political, economic, cultural, scientific and technological aspects has become an important content in the development of modern international trade, and today, Its position is becoming more and more prominent, and it is more and more important to all countries. The parallel import of the copyright trade is the intellectual property problem arising from the appearance of the copyright trade, which involves the fields of law, economy, politics and the like, and involves the copyright owner, the authorized distributor of the importing country and the parallel import of the copyright trade. As a result of the parallel import of the copyright trade, the dispute over how the legislative orientation should be determined has never stopped since the parallel import of the copyright trade. The question of how to protect and protect the copyright under the trend of the substance trade liberalization of the dispute At present, the international law on the issue and the international convention on the parallel import of the copyright trade are different, some even in the opposite direction, which will inevitably bring to the harmonious and in-depth development of the international cultural trade The influence of the law on some conduct in international trade, especially in the international trade behavior, how to scientifically and accurately predict the future of the unified legislative orientation of this issue will be to perfect the domestic phase forward and forward To avoid or deal with the frictions and disputes in the future international trade have an immeasurable weight. Therefore, in the long-term development, the exchange of international copyright trade will become more and more frequent, and the new problems that may arise in the future due to the parallel import of the copyright trade will become more and more, and it is necessary to establish the unity of this behavior in the international scope as soon as possible. On the basis of the international unified legislative orientation, the law is oriented, and the domestic phase of a country is actively improved Close the law. On the one hand, it is beneficial to fully protect the legitimate interests of the relevant rights and interests of the country from the law, to make the subject of the relevant rights and interests stable, and to reduce the risks that may be present in the trade; and on the other hand, to ensure that the rights and interests meet the international problem In the event of a dispute, the law can be established to encourage the rights and interests to actively deal with the friction and the dispute arising from the parallel import problem in the copyright trade and provide the law for the development of the country's cultural trade There are a series of problems, such as the nature of the parallel import behavior of the copyright trade, the determination of the legislative orientation and so on. The limitations of the law have not yet been put forward. At present, only the research on the parallel import of copyright trade is focused on the reasoning demonstration from the theory of law, but it is difficult to break through the relevant intellectual property theory from the legal level to the complex problem involving the multi-interest. The legal limitation of the law is, therefore, in the dilemma of "see-in-the-eye", and has not yet formed a unity in the world. In view of the above-mentioned situation, this paper tries to get out of the way of judging the legislation orientation of the parallel import of the copyright in international trade from the point of view of law. The analysis and demonstration of the problem, through the analysis of the game and the construction of the economic model, carries on the in-depth analysis of the common methods, such as the mathematical deduction, and the prediction of the national legislation trend and the benefits The trade-off of the balance of interests, the angle of maximizing the social welfare of the State and the maintenance of the legitimate interests of the subject of the rights and interests as far as possible is not infringed, and the orientation of the persuasive legislation is finally determined from the dual angle of the rational and the fairness, and it is proposed to be suitable for me on the basis of that. The concept of the country's law. For our country, due to the national conditions of our country and the influence of the related trade policy, the copyright trade is parallel to the import line. However, in the future, the import and export trade volume of the copyright work will increase rapidly, and the import and export trade volume of the copyright work will increase rapidly, and the tariff is greatly reduced, and it is possible to predict the possibility of a parallel import dispute in the relevant copyright field. Therefore, combining with the judgment of the trend of future international legislation, making a convincing legislative decision from the angle of rationality and fairness, and looking forward to the revision and perfection of our country's copyright trade The relevant laws of the parallel import, this is for the future of our country to actively deal with the trade friction that may arise from the parallel import behavior in the copyright trade,
【學(xué)位授予單位】：陜西師范大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2012
【分類號】：D997.1
[Abstract]:With the rapid development of the global economic integration process and with the coming of the age of the knowledge economy, the copyright trade involving a country's political, economic, cultural, scientific and technological aspects has become an important content in the development of modern international trade, and today, Its position is becoming more and more prominent, and it is more and more important to all countries. The parallel import of the copyright trade is the intellectual property problem arising from the appearance of the copyright trade, which involves the fields of law, economy, politics and the like, and involves the copyright owner, the authorized distributor of the importing country and the parallel import of the copyright trade. As a result of the parallel import of the copyright trade, the dispute over how the legislative orientation should be determined has never stopped since the parallel import of the copyright trade. The question of how to protect and protect the copyright under the trend of the substance trade liberalization of the dispute At present, the international law on the issue and the international convention on the parallel import of the copyright trade are different, some even in the opposite direction, which will inevitably bring to the harmonious and in-depth development of the international cultural trade The influence of the law on some conduct in international trade, especially in the international trade behavior, how to scientifically and accurately predict the future of the unified legislative orientation of this issue will be to perfect the domestic phase forward and forward To avoid or deal with the frictions and disputes in the future international trade have an immeasurable weight. Therefore, in the long-term development, the exchange of international copyright trade will become more and more frequent, and the new problems that may arise in the future due to the parallel import of the copyright trade will become more and more, and it is necessary to establish the unity of this behavior in the international scope as soon as possible. On the basis of the international unified legislative orientation, the law is oriented, and the domestic phase of a country is actively improved Close the law. On the one hand, it is beneficial to fully protect the legitimate interests of the relevant rights and interests of the country from the law, to make the subject of the relevant rights and interests stable, and to reduce the risks that may be present in the trade; and on the other hand, to ensure that the rights and interests meet the international problem In the event of a dispute, the law can be established to encourage the rights and interests to actively deal with the friction and the dispute arising from the parallel import problem in the copyright trade and provide the law for the development of the country's cultural trade There are a series of problems, such as the nature of the parallel import behavior of the copyright trade, the determination of the legislative orientation and so on. The limitations of the law have not yet been put forward. At present, only the research on the parallel import of copyright trade is focused on the reasoning demonstration from the theory of law, but it is difficult to break through the relevant intellectual property theory from the legal level to the complex problem involving the multi-interest. The legal limitation of the law is, therefore, in the dilemma of "see-in-the-eye", and has not yet formed a unity in the world. In view of the above-mentioned situation, this paper tries to get out of the way of judging the legislation orientation of the parallel import of the copyright in international trade from the point of view of law. The analysis and demonstration of the problem, through the analysis of the game and the construction of the economic model, carries on the in-depth analysis of the common methods, such as the mathematical deduction, and the prediction of the national legislation trend and the benefits The trade-off of the balance of interests, the angle of maximizing the social welfare of the State and the maintenance of the legitimate interests of the subject of the rights and interests as far as possible is not infringed, and the orientation of the persuasive legislation is finally determined from the dual angle of the rational and the fairness, and it is proposed to be suitable for me on the basis of that. The concept of the country's law. For our country, due to the national conditions of our country and the influence of the related trade policy, the copyright trade is parallel to the import line. However, in the future, the import and export trade volume of the copyright work will increase rapidly, and the import and export trade volume of the copyright work will increase rapidly, and the tariff is greatly reduced, and it is possible to predict the possibility of a parallel import dispute in the relevant copyright field. Therefore, combining with the judgment of the trend of future international legislation, making a convincing legislative decision from the angle of rationality and fairness, and looking forward to the revision and perfection of our country's copyright trade The relevant laws of the parallel import, this is for the future of our country to actively deal with the trade friction that may arise from the parallel import behavior in the copyright trade,
【學(xué)位授予單位】：陜西師范大學(xué)
【學(xué)位級別】：碩士
【學(xué)位授予年份】：2012
【分類號】：D997.1
【參考文獻(xiàn)】
相關(guān)期刊論文 前10條
1 陳玉蓮;陳紅霞;沈e，
本文編號：2454477
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