論知識產權法總論

On the General Theory of Intellectual Property Law

知識產權法總論研究存在著學科性質分歧與體系構造差異兩個致命缺陷。構造知識產權法總論必須採用功能、任務、問題導向的方法，知識產權法總論自身的特別之處在於，知識產權法律的立法形式不同於傳統民法的法典形式，知識產權法僅僅為民法的一部分，其內容完整性和傳統民法差異巨大，知識產權法總論的功能及要解決的問題也和傳統民法總論有所不同。知識產權法的私法性質和財產法性質決定了知識產權法的實質內容，知識產權法總論的內容可以通過總結現有著述和提取知識產權法律的“公因式”而來，知識產權法總論要解決保護什麼、為什麼保護以及如何保護三個問題，知識產權法總論的內容應該圍繞知識產權法的立法目的與知識產權客體進行構建。

There are two fatal flaws in the research of the general theory of intellectual property law. Firstly, there is a divergence in understanding whether the general theory of intellectual property law is viewed as a legal discipline or an interdisciplinary in terms of disciplinary nature. Secondly, there are significant differences in the basic content of the writings on the general theory of intellectual property law. Defining the general theory of intellectual property law as an interdisciplinary field is not only theoretically impractical, but also harmful, which is not conducive to the formation of the knowledge system and the construction of the discipline of intellectual property law, and even detrimental to the construction of the tule of law in intellectual property. The significant differences in the content of the literature on general theory of intellectual property law reflect the divergent views of the whose fundamental reason is that the research on intellectual property law has not yet formed its own scientific paradigm and academic community. The construction of the general theory of intellectual property law must adopt a functional, task oriented, and problem-oriented approach. The general theory of intellectual property law must conform to the usual position of the general theory of the discipline, especially the law discipline, and have the usual functions and tasks of the general theory. Through internal integration, the systematization and scientificization of the discipline can be achieved, and the status of the discipline can be determined through opening to the outside world. The special feature of the general theory of intellectual property law itself is that the legislative form of intellectual property law is different from the legal form of traditional civil law, and is manifested in multiple separate legal forms. Intellectual property law is only a part of civil law, and the completeness of its content differs greatly from traditional civil law. Unlike traditional civil law, which has logical consistency and comprehensive basic concepts and systems such as subject, object, and legal act, the general theory of intellectual property law needs to rely on these basic concepts and systems of traditional civil law to complete its complete construction and normal operation. Therefore ,the function and problems to be solved of the general theory of intellectual property law are also different from those of traditional civil law. The private law nature and property law nature of intellectual property law determine that the general theory of intellectual property law should construct its substantive content according to the tasks and logic of private law and property law. The content of the general theory of intellectual property law can be obtained by summarizing existing writings and extracting the "common factors" of intellectual property law. Although there are significant differences between different intellectual property laws, they can still extract the common factors, and coordination between the general theory and the sub theory can be achieved through detailed adjustments. The general theory of intellectual property law aims to address three issues: what to protect, why to protect, how to protect and the main contents of the general theory of intellectual property law includes the object of rights, the legitimacy and purpose of intellectual property protection, the basic principles of intellectual property law, the system of intellectual property content, the system of intellectual property infringement composition and so on. The inherent logic of the content of the General Theory of Intellectual Property Law can be summarized as follows: on the objective basis of knowledge as the object of intellectual property, under the guidance of the legislative purpose of intellectual property law, the basic principles and basic systems of intellectual property law can be systematically established, and in turn, promote the realization of the legislative purpose of intellectual property law.