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THESIS:
Theoretical basis and practice of perfecting the law on intellectual property protection procedures at the People's Court of Vietnam today
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1. Urgency of the topic
In the context of global competition and international integration, the issue of intellectual property rights (IPR) protection has become particularly important and is a top concern of countries in international economic relations. In fact, in Vietnam, the issue of IPR protection has never been as important as it is today. The cause of industrialization and modernization of the country with many opportunities and challenges requires us to have mechanisms and policies to promote creative activities and protect IPR. Institutionalizing the viewpoints, guidelines and policies of the Party and State on IPR, building an effective IPR protection mechanism are important factors, decisive to the success of the process of international economic integration, especially after Vietnam became a member of the World Trade Organization (WTO).
In the spirit of Resolution No. 08-NQ/TW dated January 2, 2002 of the Politburo "On a number of key tasks of judicial work in the coming time" and Resolution No. 48-NQ/TW dated May 24, 2005 of the Politburo on the strategy for building and perfecting the Vietnamese legal system until 2010, with a vision to 2020", perfecting the law on intellectual property protection, forming and developing the science and technology market in the direction of expanding the scope of subjects protected by intellectual property in accordance with the requirements of the WTO and international treaties to which Vietnam is a member is an urgent task. The report of the 9th Party Central Committee dated April 10, 2006 on the direction and tasks of socio-economic development in the 5 years 2006-2010 also affirmed:
Effectively implement the Law on Intellectual Property and the Law on Technology Transfer, innovate state management of the science and technology market; encourage and support science and technology activities according to market mechanisms; protect intellectual property rights for scientific works and creative activities [33].
The synchronous promulgation of legal documents on IP such as the Civil Code (CC), IP Law, Technology Transfer Law and related laws.
such as the Law on Science and Technology, the Law on Customs, the Law on Commerce, the Law on Competition, the Code of Civil Procedure (CPC) ... to participate in international treaties, to implement the requirements of joining the WTO are great efforts of the Vietnamese Government to create a legal corridor for the protection of intellectual property rights. It can be said that we have issued a system of legal documents on the content of the regulation of the field of intellectual property rights. However, the law on procedures for protecting intellectual property rights as well as the practice of resolving infringements of intellectual property rights at the People's Court (TAND) still have many shortcomings. In reality, the situation of infringements of intellectual property rights is increasingly common, throughout the country, but contrary to that reality, infringements of intellectual property rights are rarely resolved by a court decision. According to statistics of the Supreme People's Court (SPC), from 2000 to 2005, the entire Court sector accepted to resolve 93 cases of intellectual property disputes under civil procedure (including 32 cases of copyright, 18 cases of rights related to intellectual property, 43 cases of industrial property rights), of which: 11 cases of intellectual property, 22 cases of industrial property, this is unreasonable, the cause needs to be found and explained soon.
In the past, there have been a number of research works related to intellectual property rights. However, those works only studied at the theoretical level the content of intellectual property rights, the general trial activities of the People's Court or researched on enhancing the role and capacity of the People's Court in enforcing intellectual property rights, those research works have not focused on perfecting the law on procedures for protecting intellectual property rights at the People's Court. In that situation, the author chose the topic: " Theoretical basis and practice of perfecting the law on procedures for protecting intellectual property rights at the People's Court of Vietnam today " to do his master's thesis in law, majoring in theory and history of state and law.
2. Research status of the topic
In the world, the issue of intellectual property protection in general and the procedures for intellectual property protection at the People's Court in particular have been studied by many scientists. However, in Vietnam, this issue is still quite new in both theory and practice, so the research on intellectual property has been and is receiving great attention from legal experts. In recent years, there have been a number of typical works as follows: "Basic legal issues on international economic integration" compiled by Dr. Dang Quang Phuong, Justice Publishing House, Hanoi, 2005; "Innovation and
" Improving the role and capacity of the Court in enforcing intellectual property rights in Vietnam - Theoretical and practical issues" , ministerial-level scientific research project, Institute of Judicial Science, chaired by the Supreme People 's Court, 1999; " Innovation and improvement of the mechanism for adjusting the law on intellectual property rights protection in the market economy in Vietnam" , Doctoral thesis in law by Le Xuan Thao, Ho Chi Minh National Academy of Politics, 1996...
In addition, there are also some related scientific conference documents such as: Conference documents on the national key scientific research topic on "Law enforcement mechanism on intellectual property rights protection in the international integration process of Vietnam" (code QGTĐ.03.05) conducted by Hanoi National University; Conference documents on the enforcement of the Intellectual Property Law organized by the United States Agency for International Development (USAID), the Trade Promotion Support Project (STAR VIETNAM) and the Supreme People's Court, August 2006...
In general, the above works have mentioned the innovation and improvement of the mechanism for adjusting intellectual property laws in the market economy in Vietnam, including the study of the mechanism for managing and enforcing intellectual property, the content of state management of intellectual property by law; the position and role of the Court in protecting intellectual property rights... The above scientific research works are the scientific basis for the author to inherit and develop in his research topic.
3. Research object and scope
The issue of protection and enforcement of intellectual property rights has a very wide research object and scope, complex content, related to many legal fields such as civil, commercial, administrative, criminal...; therefore, if you want to do comprehensive research, it requires investment in researching knowledge related to many different branches of law. However, with a master's thesis in law, the author only limits the research object and scope to the theoretical basis and practice of perfecting the law on intellectual property protection procedures at the People's Court of Vietnam today, focusing on clarifying the current situation and role of resolving intellectual property disputes of the People's Court according to civil procedure, proposing some solutions to perfect the law on intellectual property protection procedures at the People's Court.
4. Purpose and tasks of the thesis
* Purpose:
The issue of protection and enforcement of intellectual property rights can be studied from many perspectives, with many purposes to solve problems in the legal relationship between state management agencies and judicial agencies on intellectual property rights protection. By proposing solutions to improve the law on intellectual property rights protection procedures at the People's Court, the thesis contributes to clarifying the theoretical basis and practice of improving the law on intellectual property rights protection procedures at the People's Court of Vietnam today.
* Mission:
From the above purpose, the thesis has the following tasks:
- Clarifying general theoretical and practical issues to perfect the law on procedures for protecting intellectual property rights at the People's Court;
- Analyze the current legal status of intellectual property protection procedures and the role of resolving intellectual property disputes at the People's Court;
- Propose some solutions with theoretical and practical basis to improve the law on procedures for protecting intellectual property rights at the People's Court.
5. Theoretical basis and research methods
The thesis is based on the theory of Marxism-Leninism, Ho Chi Minh's thought on the state and law, on the theory of specialized science on intellectual property, and at the same time applies the basic viewpoints of our Party and State on the development of science - technology and intellectual property in the documents of the Communist Party of Vietnam. The thesis uses general research methods of dialectical materialism and historical materialism such as: specific historical method, method of combining theory with practice, method of analysis, synthesis and use of statistical data, method of legal comparison, on the basis of considering the popularity of law in the region as well as law in the world on the protection of intellectual property rights in the court system.
6. New contributions of the thesis
In the field of intellectual property protection, intellectual property protection at the People's Court by various forms
What kind of procedures, what are the procedures, how are the practices... have not been studied, this is the first research work on the theoretical basis and practical basis for perfecting the law on procedures for protecting intellectual property rights at the People's Court in our country in the current situation. The thesis contributes to perfecting the theoretical basis for procedures for protecting intellectual property rights at the People's Court; analyzing the current status of the law on procedures and litigation procedures (administrative, criminal, civil) and analyzing the current status of resolving intellectual property cases at the People's Court, pointing out the advantages, limitations and causes of them; thereby proposing a number of solutions to perfect the law on procedures for protecting intellectual property rights at the People's Court.
7. Theoretical and practical significance of the thesis
The thesis is a systematic research work on the theory and practice of perfecting the law on procedures for protecting intellectual property rights at the People's Court of Vietnam. The thesis has the significance of contributing to strengthening the legal system in the field of intellectual property rights and innovating and perfecting the law on procedures for protecting intellectual property rights at the People's Court of Vietnam today. The thesis can be used as a document for those interested in studying the procedures for protecting intellectual property rights at the People's Court. The proposals can be used as reference in perfecting the law, guiding the implementation of the law and improving the effectiveness of protecting intellectual property rights at the People's Court.
8. Structure of the thesis
In addition to the introduction, conclusion, list of references and appendix, the thesis consists of 3 chapters and 8 sections.
Chapter 1
theoretical issues
on intellectual property protection procedures
1.1. General theoretical issues on intellectual property protection
1.1.1. Concept of intellectual property rights
The achievements created by human intelligence through creative activities are recognized as intellectual property. Intellectual property often exists in the form of closely linked information, expressed in tangible objects and the objects carrying that information are capable of appearing at the same time with an unlimited number of copies in different locations around the world. Ownership in this case is not the ownership of the tangible copies themselves but the ownership of the form of expression of the information contained in those copies [40].
Intellectual property has the ability to share and is highly social. Each achievement created from human intellectual activities will bring new spiritual and intellectual values to the whole society and all of humanity. The intangible nature of this type of property makes it so that the use and exploitation of intellectual products by one person does not reduce or affect the use of others as well as those who create them. Therefore, intellectual property will bring benefits either in terms of spirit and knowledge or in terms of economy to everyone and the whole society. However, also stemming from this special nature of intellectual property, it cannot be possessed in reality, but the ability to spread that possession is very fast and very difficult to control. On the other hand, once published, it can also be easily copied, used and exploited widely anywhere by anyone... [50].
Although the achievements created by human intelligence through creative activities are implicitly recognized as intellectual property, it is necessary to distinguish between intellectual property rights and property ownership rights. If property ownership rights include the owner's right to possession, right to use, and right to dispose, intellectual property rights have a broader connotation. According to the concept
The most general concept, in the Convention establishing the World Intellectual Property Organization (WIPO) signed in Stockholm on July 14, 1967:
Intellectual property rights include rights relating to literary, artistic and scientific works, inventions in the fields of human activity, scientific discoveries, industrial designs, trademarks, service marks, trade names and indications, protection against unfair competition as well as all other rights arising from intellectual activity in the industrial, scientific, literary or artistic fields [18].
Accordingly, people distinguish the objects of intellectual property rights including: literary, artistic and scientific works; performance programs, radio, recording, television...; inventions/utility solutions; industrial designs; trademarks; trade names; appellations of origin of goods, geographical indications; business secrets; semiconductor integrated circuit layout designs; new plant varieties; preventing illegal competition. The two most common groups of intellectual property rights are QTG and industrial property rights (QSHCN). However, along with the development of science and technology, new rights such as semiconductor integrated circuit layout designs and rights to new plant varieties are also protected by law as intellectual property.
After 20 years of implementing the national renovation process, under the leadership of the Communist Party of Vietnam, the IP policy has been increasingly consolidated and developed. In addition, the completion of the system, organization and capacity of state management agencies on IP is one of the initial goals that has been achieved. The Vietnamese State recognizes private ownership of IP objects, attaches importance to the legal policy on IP protection, considering it an important policy in the long-term development strategy. With the goal of building a complete, modern and effective system of intellectual property protection to promote scientific, technological and business innovation of society, attract foreign investment, meet the needs of international economic integration to carry out the industrialization and modernization of the country, Article 60 of the 1992 Constitution stipulates: "Citizens have the right to conduct scientific and technical research, inventions, innovations, technical improvements, rationalization of production, creation, literary and artistic criticism and participation in other cultural activities. The State protects copyright and industrial property rights" [34]. The "completion