《民法典》与知识产权法的适用关系

《民法典》与知识产权法之关系既有普通法与特别法的共性,更有知识产权特质带来的个性。知识产权法的适用需要民法视野,更需要保持其个性,且其个性更多源于公共政策性,并以此与其他民事权利保护相界分。合法、公平、诚实信用原则适用于知识产权法,但又被赋予知识产权特色和内涵。知识产权法开放性地保护法益,是法益保护的重镇,但法益保护以合法为前提,并应对保护的正当性进行实质性衡量,非法行为不产生法益。诚实信用原则有广泛适用性,但又需要保持适用上的边界与谦抑。知识产权与物权在权利外观上有相似之处,但二者的原理和规则迥然不同,在理念与制度上不能简单类比。

On the Relationship Between Application of Civil Code and Intellectual Property Law

The relationship between the civil code and intellectual property law not only has the common character between general law and special law,but also stresses the individuality as reflected by the characteristics of intellectual property.The intellectual property law needs to be applied from the perspective of civil law,while maintaining its own individuality.The individuality of intellectual property law is originated,to a greater degree,from the nature of public policy,which distinguishes intellectual property form other civil rights protection.The principles of legality,fairness and good faith are applicable to intellectual property law,however with the characteristics and connotations of intellectual property.The intellectual property law,being an important part of legal interests protection,is open to all kinds of legal interests.It should be noted,though,that the protection of legal interests takes legality as the prerequisite and would substantively measure the legitimacy of protection.Illegal acts do not generate legal interests.The principle of good faith has wide applicability within certain boundary and needs to maintain modesty in application.Intellectual property seems like property right,but the two of them are drastically different and therefore cannot be compared simply in terms of concepts and systems.