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The China Trips Equation: Past, Present, and Future

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The China TRIPS Equation: Past, Present, and Future


培 养 单 位 : 法学院

学 科 : 中国法

研 究 生 :



指 导 教 师 : 王兵






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文章分两步进行分析。首先讨论《与贸易有关的知识产权协议》不能成为,至少现在不能成为中国知识产权保护模式理想选择的原因。尽管现实是中国已签署了《与贸易有关的知识产权协议》,中国有义务遵守该协议。为此,本文提出各种可能的选择,使国际准则与中国本土文化能够更好结合, 同时提出一些中国应对国际指责的方式。总之, 希望这方面研究能够完善,可以进一步帮助中国在自己的道路上沿着这个方向走下去

关键词: 司法独立 司法解释 司法改革


China is a nation whose economy has taken massive leaps and bounds since the open door policy was enacted. With the growth in the economy, it was determined that legal reform also was necessary to meet China's changing needs in the international arena. The promulgation of a profusion of laws, however, does not mean a change in the culture or the people's thinking will instantly follow. In the area of intellectual property, this gap between law and practice has earned China criticism from developed nations.

This paper is confined to analyzing and discussing the completely different path that China has taken in development of its concept of intellectual property. These differences have ramifications on China's ability to conform to an international intellectual property system that was designed to fit the development of the Western nations. This issue will be considered by examining (i) the history behind, and the future of, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which is the basis of the international standards; (ii) the early and more recent influences of the Chinese culture which formed the role of intellectual property in Chinese society and the development of the law alongside these philosophies; (iii) the current Constitutional view of intellectual property and its compatibility with the TRIPS' view ; and (iv) what are China's options in the current situation.

This paper takes a two fold approach. It first discusses the reasons why TRIPS is not the ideal fit for China, at least not at this time. The reality is however, that China is a signatory to TRIPS, and obligated to comply nevertheless. With this view in mind the paper raises possible options to help integrate these international standards into the Chinese culture, and the ways in which China can respond to its critics. In conclusion, areas of research that may further assist China in its path along this road are offered.

Keywords: Judicial Independence Judicial Interpretation Judicial Reform

Table of Contents

Chapter 1 Introduction 1

Chapter 2 Overview of TRIPS 3

I. The World Trade Organization's View 3

II. An Alternative View 4

(i) How TRIPS



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