知识产权保险制度研究
发布时间：2018-07-27 15:24
【摘要】：知识经济时代以来,知识产权的运用和保护程度成为衡量一个国家竞争力的重要指标,也关乎到一个企业市场竞争力的大小强弱。一方面,知识产权由于本身蕴含的巨大商业利益,可复制性强的特征,因而容易成为被侵犯的对象,加大了知识产权的保护难度。另一方面,我国中小企业屡次遭受“337调查”,多次被以美国企业为代表的国外企业提起侵犯其知识产权诉讼。中小企业由于财力有限,在面对巨额的诉讼费用和高额赔偿,难以正当维权,往往不得不选择妥协退出国际市场,给我国经济带来严重打击。而我国现有对知识产权救济方式基本都是事后补救,并不能分散风险,减少损失,这样既损害企业利益,又浪费大量人力物力。为了维护知识产权权利人的合法权利,分散知识产权权利相对人的侵权风险,欧美国家在上世纪八十年代推出了知识产权保险。由于我国广大中小企业有分散风险的需求,且存在一系列构建知识产权保险制度的有利条件,因此构建适合我国国情的知识产权保险制度成为一个重要研究课题。 第一章阐述了知识产权的基本理论。首先介绍了知识产权保险的基本分类：一类是知识产权执行保险与知识产权侵权责任险,另一类是强制性知识产权保险与自愿性知识产权保险。其次阐述了知识产权保险的基本原理。再次比较了知识产权保险与有形财产保险的特征差异。最后介绍了知识产权保险保险的基本功能和作用。 第二章以国外关于知识产权保险构建为视角,比较分析了国外知识产权保险立法的情况和应当克服的不足：美国的知识产权保险制度,包括知识产权执行保险和知识产权侵权保险；德国知识产权保险制度：包括知识产权执行保险、知识产权侵权保险、诉讼费用保险；英国知识产权保险制度,包括应诉保险和追诉保险；欧盟知识产权保险制度,包括专利诉讼保险计划和专利诉讼和互保制度；日本知识产权保险制度,包括知识产权诉讼费用保险和知识产权许可费用保险。最后盘点了发达国家知识产权保险制度存在的诸如知识产权保险易被滥用、保费偏高、大企业拖延诉讼的弊端,指出应扩大理赔范围,充实保险市场以降低保费,并建立配套的仲裁调解制度防止大企业拖延诉讼。 第三章首先论证了我国构建知识产权保险制度的必要性：侵权案件剧增,诉讼成本高昂；保护机制缺失,利益亟待维护；创新保险制度,有效分摊风险；有效推进知识产权制度发展。其次论证了我国构建知识产权保险制度的可行性：符合我国保险法的立法宗旨为其提供了实现目标；具备制度建立现实基础；符合世界贸易组织体系的现实要求；我国构建知识产权保险制度的法律依据；已有的知识产权保险实践为其创造了条件。 第四章提出了构建我国知识产权保险制度的设想。首先谈到了我国构建知识产权保险制度的障碍及破除,其次论述了我国知识产权保险制度的立法价值取向、基本原则和立法模式。接着阐述了我国知识产权保险保险制度的基本内容：主张初期采用由政府扶持设立的半政策性质的保险模式,待我国知识产权保险制度成熟之后,则应与国际接轨采用商业模式。构建起以专利侵权责任险、专利执行保险、媒体侵权责任险、知识产权诉讼费用保险、知识产权许可费用保险、知识产权诉讼代理费用保险的知识产权保险体系,为我国企业提供全方位的服务与保护。遵循境内投保原则,合理设计保费,区分保险险种和技术领域来厘定保费。分别设置最低起赔限额和最高赔偿限额,细化规定知识产权保险当事人的权利义务。最后为完善我国知识产权保险制度提出了一些立法建议。
[Abstract]:Since the era of knowledge economy, the use and protection of intellectual property has become an important index to measure the competitiveness of a country, and it is also related to the strength and weakness of the competitiveness of an enterprise. On the one hand, intellectual property can be easily duplicated as a result of its huge commercial interests. On the other hand, small and medium enterprises in China have repeatedly been subjected to the "337 investigation", and many times have been violated their intellectual property litigation with the foreign enterprises represented by the American enterprises. Small and medium enterprises often have to choose to compromise and exit due to the limited financial resources and a huge amount of litigation and high compensation. The international market has brought a serious blow to our country's economy. However, the existing remedy for intellectual property rights in our country is basically remedied after the event, which can not disperse the risks and reduce the loss, which is not only damaging the interests of the enterprises, but also wasting a lot of human and material resources. In order to safeguard the right of the right holders of intellectual property rights, the infringement wind of the relative persons of intellectual property rights is dispersed. The European and American countries launched the intellectual property insurance in the 80s of last century. Because the large and medium sized enterprises in our country have the demand of dispersing risk, and there are a series of favorable conditions for the construction of intellectual property insurance system, it is an important research topic to construct the intellectual property insurance system suitable for the national conditions of our country.
The first chapter expounds the basic theory of intellectual property rights. First, the basic classification of intellectual property insurance is introduced: one is the implementation of insurance and intellectual property right infringement liability insurance, the other is compulsory intellectual property insurance and voluntary intellectual property insurance. Secondly, the basic principles of intellectual property insurance are expounded. The difference between intellectual property insurance and tangible property insurance is introduced. Finally, the basic functions and functions of intellectual property insurance insurance are introduced.
The second chapter, from the perspective of the construction of intellectual property insurance in foreign countries, compares and analyzes the situation of foreign intellectual property insurance legislation and the shortcomings that should be overcome: the American intellectual property insurance system, including intellectual property enforcement insurance and intellectual property rights infringement insurance, and the German intellectual property insurance system, including intellectual property enforcement insurance, Intellectual property infringement insurance, litigation cost insurance; British intellectual property insurance system, including response insurance and prosecution insurance; EU intellectual property insurance system, including patent litigation insurance scheme and patent litigation and mutual insurance system; Japanese intellectual property insurance system, including intellectual property litigation cost insurance and intellectual property licensing fees In the end, it points out the drawbacks of the intellectual property insurance system in developed countries, such as the abuse of intellectual property insurance, the high premium and the delay in the litigation. It is pointed out that the scope of claims should be expanded, the insurance market should be enriched to reduce the premium, and a matching arbitration mediation system should be established to prevent large enterprises from procrastination.
The third chapter first demonstrates the necessity of constructing the intellectual property insurance system in our country: the sharp increase in the infringement cases, the high cost of litigation, the lack of protection mechanism, the urgent maintenance of the interests, the innovation of the insurance system, the effective allocation of risk and the development of the intellectual property system. Secondly, the feasibility of the construction of the intellectual property insurance system in China is demonstrated. According to the legislative purpose of China's Insurance Law, it provides the realization goal, the establishment of the realistic foundation of the system, the realistic requirements of the world trade organization system, the legal basis for the construction of the intellectual property insurance system in our country, and the conditions of the existing practice of intellectual property insurance.
The fourth chapter puts forward the idea of constructing our country's intellectual property insurance system. First, it talks about the obstacles and break up of China's intellectual property insurance system. Secondly, it discusses the legislative value orientation, basic principles and legislative modes of China's intellectual property insurance system, and then expounds the basic contents of China's intellectual property insurance system. It is advocated to adopt the insurance model of the semi policy nature set up by the government in the early stage. After the intellectual property insurance system of our country is ripe, the business model should be adopted in line with the international system. The intellectual property insurance system of property rights litigation agency cost insurance provides a full range of service and protection for Chinese enterprises. According to the principle of domestic insurance, the insurance premium is designed reasonably, the insurance premium is distinguished and the insurance premium is distinguished. The minimum compensation limit and maximum compensation limit are set up respectively, and the parties to the insurance of intellectual property insurance are refined. Finally, it puts forward some legislative proposals for improving the intellectual property insurance system in China.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.284;D923.4
本文编号：2148263
[Abstract]:Since the era of knowledge economy, the use and protection of intellectual property has become an important index to measure the competitiveness of a country, and it is also related to the strength and weakness of the competitiveness of an enterprise. On the one hand, intellectual property can be easily duplicated as a result of its huge commercial interests. On the other hand, small and medium enterprises in China have repeatedly been subjected to the "337 investigation", and many times have been violated their intellectual property litigation with the foreign enterprises represented by the American enterprises. Small and medium enterprises often have to choose to compromise and exit due to the limited financial resources and a huge amount of litigation and high compensation. The international market has brought a serious blow to our country's economy. However, the existing remedy for intellectual property rights in our country is basically remedied after the event, which can not disperse the risks and reduce the loss, which is not only damaging the interests of the enterprises, but also wasting a lot of human and material resources. In order to safeguard the right of the right holders of intellectual property rights, the infringement wind of the relative persons of intellectual property rights is dispersed. The European and American countries launched the intellectual property insurance in the 80s of last century. Because the large and medium sized enterprises in our country have the demand of dispersing risk, and there are a series of favorable conditions for the construction of intellectual property insurance system, it is an important research topic to construct the intellectual property insurance system suitable for the national conditions of our country.
The first chapter expounds the basic theory of intellectual property rights. First, the basic classification of intellectual property insurance is introduced: one is the implementation of insurance and intellectual property right infringement liability insurance, the other is compulsory intellectual property insurance and voluntary intellectual property insurance. Secondly, the basic principles of intellectual property insurance are expounded. The difference between intellectual property insurance and tangible property insurance is introduced. Finally, the basic functions and functions of intellectual property insurance insurance are introduced.
The second chapter, from the perspective of the construction of intellectual property insurance in foreign countries, compares and analyzes the situation of foreign intellectual property insurance legislation and the shortcomings that should be overcome: the American intellectual property insurance system, including intellectual property enforcement insurance and intellectual property rights infringement insurance, and the German intellectual property insurance system, including intellectual property enforcement insurance, Intellectual property infringement insurance, litigation cost insurance; British intellectual property insurance system, including response insurance and prosecution insurance; EU intellectual property insurance system, including patent litigation insurance scheme and patent litigation and mutual insurance system; Japanese intellectual property insurance system, including intellectual property litigation cost insurance and intellectual property licensing fees In the end, it points out the drawbacks of the intellectual property insurance system in developed countries, such as the abuse of intellectual property insurance, the high premium and the delay in the litigation. It is pointed out that the scope of claims should be expanded, the insurance market should be enriched to reduce the premium, and a matching arbitration mediation system should be established to prevent large enterprises from procrastination.
The third chapter first demonstrates the necessity of constructing the intellectual property insurance system in our country: the sharp increase in the infringement cases, the high cost of litigation, the lack of protection mechanism, the urgent maintenance of the interests, the innovation of the insurance system, the effective allocation of risk and the development of the intellectual property system. Secondly, the feasibility of the construction of the intellectual property insurance system in China is demonstrated. According to the legislative purpose of China's Insurance Law, it provides the realization goal, the establishment of the realistic foundation of the system, the realistic requirements of the world trade organization system, the legal basis for the construction of the intellectual property insurance system in our country, and the conditions of the existing practice of intellectual property insurance.
The fourth chapter puts forward the idea of constructing our country's intellectual property insurance system. First, it talks about the obstacles and break up of China's intellectual property insurance system. Secondly, it discusses the legislative value orientation, basic principles and legislative modes of China's intellectual property insurance system, and then expounds the basic contents of China's intellectual property insurance system. It is advocated to adopt the insurance model of the semi policy nature set up by the government in the early stage. After the intellectual property insurance system of our country is ripe, the business model should be adopted in line with the international system. The intellectual property insurance system of property rights litigation agency cost insurance provides a full range of service and protection for Chinese enterprises. According to the principle of domestic insurance, the insurance premium is designed reasonably, the insurance premium is distinguished and the insurance premium is distinguished. The minimum compensation limit and maximum compensation limit are set up respectively, and the parties to the insurance of intellectual property insurance are refined. Finally, it puts forward some legislative proposals for improving the intellectual property insurance system in China.
【学位授予单位】：西南财经大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.284;D923.4
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