知识产权法与民法的体系定位

Controversies that evoked by whether intellectual property should be codified, is essentially an issue how we define the relationship between intellectual property law and civil law. By tracing back to the origin of both laws, we did not pay enough attention to the fact that intellectual property law and civil law were legislated in different way and background. Based on the nature of private right, intellectual property, private right, property right are not be clearly defined and classified, which leads to the unscientific codification. When reviewing the history of intellectual property, it can be find that the legislation of intellectual property law was more like Merchant Law, whose nature are autonomous and supranational, so the relationship between intellectual property law and civil law, is more like the relationship between commercial law and civil law. Additionally, considering the intangible nature of the subject of intellectual property, property rules obviously are different compared to real property. The different nature of the subject of copyright, patent and trademark also forced us not to make a unify intellectual property code.