美國337條款實施機制研究
發(fā)布時間：2018-11-24 14:47
【摘要】： 337條款實施機制是整個美國對外貿易法體制內的一個重要的有機組成部分,同時也是美國知識產權實施機制中關鍵環(huán)節(jié)之一。針對該實施機制而進行的系統(tǒng)、整合的研究方式是本文區(qū)別于以337條款本身等其他方面為研究對象的論文的顯著特點。本文認為將位于不同層面上但彼此間存在著本質的、天然的有機聯(lián)系的法律元素囊括于該實施機制中加以綜合性地考察,不僅有助于了解各元素本身,而且還有助于在此基礎之上深刻理解該機制的各組成要素之間的聯(lián)系與互動以及整體的運行原理、規(guī)律和效能。這一分析模式和進路亦是本文之重要特色之一。本文旨在從實施機制的視角,綜合運用法學、法經濟學的相關理論對337條款所涉之多方面問題進行較深入系統(tǒng)的研究,從而力圖解釋現象、預測趨勢和提供對策。除導論和結論外,本文共分為三章。 第一章在理論層面上分別從國際貿易理論與政策、國際法法理和法經濟學的視角對337條款實施機制進行了研究。本文認為337條款實施機制雖然是一種國內的法律機制,但實質上卻是美國推行其特定的宏觀國際貿易政策的一種微觀法律工具或手段,且從深層次上又植根于若干種相應的國際貿易理論。因此,337條款實施機制的產生和發(fā)展同特定的國際貿易政策與國際貿易理論存在著天然的、本質的密切聯(lián)系。經分析,337條款及其所依托的《1930年關稅法》的制定和隨后的修訂無論在時間上,還是在性質上,都分別正是與超保護貿易理論和新保護貿易理論及其相應的美國對外貿易政策休戚相關。 由法哲學的維度實然地檢視之,從實在國際法(Positive International Law)角度而言,在337條款實施機制的合法性尚未被WTO爭端解決機制所徹底否定之前,該機制在國際法框架下是合法的。 本文經由新制度經濟學的路徑依賴理論分析認為,即便能夠證明,并通過WTO爭端解決機制迫使美國再度全面修訂乃至廢除337條款,美國也絕不可能對進口產品侵犯其國內專利權等知識產權的情形置若罔聞,勢必還會對此類情形加以有效的制度性約束,337條款實施機制也仍將“形滅而神不滅”。而且,從經濟學角度分析,之所以337條款實施機制或其制度內核應該不會被全盤廢除,是因為全盤廢除所引致的沉沒成本(sunk cost)可能會高到無可估量。而沉沒成本方面的因素亦是產生制度的路徑依賴效應的重要因素之一。因而,337條款實施機制這一制度體系已經由其自身發(fā)展歷史和演化邏輯而形成了一定的路徑依賴(path-dependence),并在一定程度上產生了鎖定(lock-in)效應。就其發(fā)展趨勢而言,在可預見的未來,以美國知識產權邊境保護為己任的337條款實施機制將會繼續(xù)存在甚至還可能獲得進一步的加強。 第二章首先扼要地闡析337條款實施機制的基本程序,為其后較深入、全面和系統(tǒng)地剖析該實施機制做鋪墊。其次,通過將337條款調查同反傾銷調查相比較,以更清晰地展現出現行337條款實施機制的主要特點,從而以利進一步剖析該機制。最后,根據實施機制中不同環(huán)節(jié)的性質,先將該機制宏觀地分為行政程序、司法程序與海關自執(zhí)行程序加以分別剖析,然后在此基礎上再對之進行整體闡析。 就整體實施機制內的行政程序、司法程序和海關自執(zhí)行程序的關系而言,總體上可認為,行政程序旨在生成救濟措施,司法程序旨在確認救濟措施,而海關自執(zhí)行程序旨在執(zhí)行和具體實現救濟措施。三者依次環(huán)環(huán)相扣、前后呼應并缺一不可,從而使得337條款實施機制所能生成的救濟措施在具有充分合法性的基礎上得以切實有效地具體實現,進而從根本上發(fā)揮保護美國國內產業(yè)之核心功效。 第三章對中國從入世前偶爾涉案轉變?yōu)槿胧篮髤s成為最主要的涉案國的現象加以分析,本文認為,造成這種現象的主要原因有兩個：第一、中國加入WTO后在更大程度上融入了世界貿易體制,客觀上導致中國對包括美國在內的其他WTO成員的貿易量節(jié)節(jié)攀升。出口至美國的貨物總量越多,涉案的概率就越大；第二、隨著中國近年來科技水平和綜合國力的不斷提高,出口至美國的技術密集型產品的比重不斷增加,導致出口至美國的產品侵犯或可能侵犯美國專利權的概率亦隨之增大。 本文認為中國企業(yè)涉案的案情各有不同,加之涉案企業(yè)在美國的市場占有率、營銷策略和資本運營狀況等多方面的差異,因此并不存在“放之四海而皆準”的應對方略。企業(yè)涉案后聘請律師代理應訴也不一定均為上策。而需依具體個案的各方面具體情況綜合考慮而選擇有針對性的應對方略,不排除涉案中國企業(yè)在有的情況下選擇缺席反為上策。在應訴為上策的情況下,從國際貿易的知識產權法角度,’中國企業(yè)可從國際貿易委員會的對事管轄權方面、337條款的國內產業(yè)之規(guī)定方面、主動介入方面和美國專利法及相應的判例法等方面著手考慮應對之策。 本文最終認為,多方探尋中國企業(yè)涉案后的的具體應對之策固然重要,但是這些應對于已然的策略在總體效果上僅僅能夠起到揚湯止沸的治標之效。畢竟,只要涉案成為被申請人,無論結果如何,都將無可避免地或多或少蒙受經濟損失。因此,歸根結底,對以美國市場為主要目標市場的中國企業(yè)而言,不斷地增強知識產權意識(尤其是專利意識)、加大產品研發(fā)力度并及時在美國申請并獲得專利等,才是能防患于未然并從根本上避免遭逢337條款調查的釜底抽薪的治本之道。
[Abstract]:The implementation mechanism of 337 is an important organic component of the whole American foreign trade law system, and is also one of the key links in the implementation mechanism of the intellectual property of the United States. The systematic and integral research method for this implementation mechanism is the distinguishing feature of this paper from other aspects, such as 337 terms and so on. In this paper, it is considered that the legal elements which are located at different levels but have the essential and natural and organic connection with each other are included in the implementation mechanism to make a comprehensive study, not only to understand the elements themselves, It also contributes to a deep understanding of the relationship and interaction between the constituent elements of the mechanism, as well as the overall operational principle, law and efficiency. This analysis model and route are also one of the important features of this paper. The purpose of this paper is to study the multi-faceted problems of 337 articles from the perspective of the implementation mechanism, using the relevant theories of law and law economics, so as to try to explain the phenomena, predict the trends and provide the countermeasures. In addition to the introduction and conclusion, this paper is divided into three chapters. The first chapter is based on the theory and policy of international trade, the legal theory of international law and the perspective of law economics. It is a kind of domestic legal mechanism, but in essence it is a kind of micro-legal instrument or means for the United States to carry out its specific macro-international trade policy, and it is deeply rooted in several corresponding international laws. Therefore, the production and development of the 337-clause implementation mechanism is natural and essential to the specific international trade policy and the international trade theory It is closely related to the theory of super-protection trade and the theory of new protection and the corresponding U.S. foreign trade policy, whether in time or in nature. The view of the dimension of the legal philosophy, from the point of view of the positive international law, is that the mechanism is in the State of China before the legality of the implementation mechanism of 337 has not been completely repudiated by the WTO dispute settlement mechanism On the basis of the theory of the path-dependence of the new institutional economics, the paper holds that, even if it can be proved, and through the WTO dispute settlement mechanism, the United States is forced to It is in no way possible for the United States to ignore the intellectual property rights of imported products and other intellectual property rights, and it is bound to be effective institutional constraints on such cases, and the implementation mechanism of 337 will still be the same as" And the God Will not "" . Also, from an economic point of view, the 337 implementation mechanism or its system core should not be completely abolished because of the overall abolition of the sunk costs (sunk). cost) may be high to inestimable, and the factor in the cost of sink is also a system of production One of the important factors of the path-dependent effect is that the system of the 337-term implementation mechanism has formed a path-dependency by its own development history and the evolution logic, and it can be generated to a certain extent. The lock-in effect. For its development trend, the 337 implementation mechanism, which is protected by the US intellectual property border as its own, will continue to exist in the foreseeable future in that second chap, the basic procedure for the implementation of the article 337 implementation mechanism was briefly describe, which was followed by a higher level of follow-up, in an in-depth, comprehensive and systematic analysis of that implementation mechanism, second, by compare the 337 investigation with the anti-dumping investigation to show more clearly the implementation of the 337 clause The main feature of the system is to facilitate the further analysis of the mechanism. Finally, according to the nature of the different links in the implementation mechanism, the mechanism is divided into the administrative procedure, the judicial process and the customs self-executing program, respectively. On the basis of the analysis of the relationship between the administrative procedure, the judicial process and the customs self-executing procedure in the overall implementation mechanism, the administrative procedure is generally regarded as the purpose of generating the relief measures, and the judicial process is designed to confirm the relief. Measures, and the self-executing procedures of the customs, are designed to implement and implement the relief measures in turn. The three are ring-and-ring in turn, which are in concert with each other and are short of one, so that the relief measures that can be generated by the 337 implementation mechanism can be more and more effective and practical on the basis of the full legitimacy The third chapter analyses the phenomenon that China has become the most important country after China's entry into WTO. Two: First, after China's entry into the WTO, it is more integrated into the world trade system, guest In view of China's rise in the trade volume of other WTO members, including the United States, the more the total amount of goods exported to the United States, the greater the probability of the case; and second, as China's science and technology levels and heddle in recent years The increasing share of technology-intensive products from exports to the United States has been increasing, with a continuing increase in the proportion of technology-intensive products exported to the United States The probability of an export-to-US product violation or a possible violation of the U.S. patent right is also increased. In this paper, the author thinks that the case of the Chinese enterprises is different, and in addition, the company's market share in the United States, the marketing strategy and the capital operation condition are different, so there is no "unk". >鈥渢o be one of the four seas" 's response plan. The application of a lawyer's agent in the case of a business case shall not be the best policy, and it is required to be selected according to the specific circumstances of the specific case. "The targeted response plan does not exclude the situation of the Chinese enterprises involved in the case in the case of an action against an international trade, the Chinese enterprise may, from the angle of the intellectual property law of international trade, take the form of the domestic industry of the International Trade Commission on the domestic industry of the article 337 In the end of this paper, the author thinks that the specific response of the Chinese enterprises is to be explored in many ways. The strategy is important, but these should only play a role in the overall effect of the already existing strategy After all, as long as the case involved is the respondent, no matter how the result is, the economic loss will be more or less. Therefore, in the final analysis, for Chinese enterprises with the main target market in the U.S. market, it is constantly increasing Strong intellectual property awareness (especially patent awareness), increased product R & D and timely application in the United States and obtained
【學位授予單位】：復旦大學
【學位級別】：博士
【學位授予年份】：2010
【分類號】：D971.2;DD912.29
本文編號：2354126
[Abstract]:The implementation mechanism of 337 is an important organic component of the whole American foreign trade law system, and is also one of the key links in the implementation mechanism of the intellectual property of the United States. The systematic and integral research method for this implementation mechanism is the distinguishing feature of this paper from other aspects, such as 337 terms and so on. In this paper, it is considered that the legal elements which are located at different levels but have the essential and natural and organic connection with each other are included in the implementation mechanism to make a comprehensive study, not only to understand the elements themselves, It also contributes to a deep understanding of the relationship and interaction between the constituent elements of the mechanism, as well as the overall operational principle, law and efficiency. This analysis model and route are also one of the important features of this paper. The purpose of this paper is to study the multi-faceted problems of 337 articles from the perspective of the implementation mechanism, using the relevant theories of law and law economics, so as to try to explain the phenomena, predict the trends and provide the countermeasures. In addition to the introduction and conclusion, this paper is divided into three chapters. The first chapter is based on the theory and policy of international trade, the legal theory of international law and the perspective of law economics. It is a kind of domestic legal mechanism, but in essence it is a kind of micro-legal instrument or means for the United States to carry out its specific macro-international trade policy, and it is deeply rooted in several corresponding international laws. Therefore, the production and development of the 337-clause implementation mechanism is natural and essential to the specific international trade policy and the international trade theory It is closely related to the theory of super-protection trade and the theory of new protection and the corresponding U.S. foreign trade policy, whether in time or in nature. The view of the dimension of the legal philosophy, from the point of view of the positive international law, is that the mechanism is in the State of China before the legality of the implementation mechanism of 337 has not been completely repudiated by the WTO dispute settlement mechanism On the basis of the theory of the path-dependence of the new institutional economics, the paper holds that, even if it can be proved, and through the WTO dispute settlement mechanism, the United States is forced to It is in no way possible for the United States to ignore the intellectual property rights of imported products and other intellectual property rights, and it is bound to be effective institutional constraints on such cases, and the implementation mechanism of 337 will still be the same as" And the God Will not "" . Also, from an economic point of view, the 337 implementation mechanism or its system core should not be completely abolished because of the overall abolition of the sunk costs (sunk). cost) may be high to inestimable, and the factor in the cost of sink is also a system of production One of the important factors of the path-dependent effect is that the system of the 337-term implementation mechanism has formed a path-dependency by its own development history and the evolution logic, and it can be generated to a certain extent. The lock-in effect. For its development trend, the 337 implementation mechanism, which is protected by the US intellectual property border as its own, will continue to exist in the foreseeable future in that second chap, the basic procedure for the implementation of the article 337 implementation mechanism was briefly describe, which was followed by a higher level of follow-up, in an in-depth, comprehensive and systematic analysis of that implementation mechanism, second, by compare the 337 investigation with the anti-dumping investigation to show more clearly the implementation of the 337 clause The main feature of the system is to facilitate the further analysis of the mechanism. Finally, according to the nature of the different links in the implementation mechanism, the mechanism is divided into the administrative procedure, the judicial process and the customs self-executing program, respectively. On the basis of the analysis of the relationship between the administrative procedure, the judicial process and the customs self-executing procedure in the overall implementation mechanism, the administrative procedure is generally regarded as the purpose of generating the relief measures, and the judicial process is designed to confirm the relief. Measures, and the self-executing procedures of the customs, are designed to implement and implement the relief measures in turn. The three are ring-and-ring in turn, which are in concert with each other and are short of one, so that the relief measures that can be generated by the 337 implementation mechanism can be more and more effective and practical on the basis of the full legitimacy The third chapter analyses the phenomenon that China has become the most important country after China's entry into WTO. Two: First, after China's entry into the WTO, it is more integrated into the world trade system, guest In view of China's rise in the trade volume of other WTO members, including the United States, the more the total amount of goods exported to the United States, the greater the probability of the case; and second, as China's science and technology levels and heddle in recent years The increasing share of technology-intensive products from exports to the United States has been increasing, with a continuing increase in the proportion of technology-intensive products exported to the United States The probability of an export-to-US product violation or a possible violation of the U.S. patent right is also increased. In this paper, the author thinks that the case of the Chinese enterprises is different, and in addition, the company's market share in the United States, the marketing strategy and the capital operation condition are different, so there is no "unk". >鈥渢o be one of the four seas" 's response plan. The application of a lawyer's agent in the case of a business case shall not be the best policy, and it is required to be selected according to the specific circumstances of the specific case. "The targeted response plan does not exclude the situation of the Chinese enterprises involved in the case in the case of an action against an international trade, the Chinese enterprise may, from the angle of the intellectual property law of international trade, take the form of the domestic industry of the International Trade Commission on the domestic industry of the article 337 In the end of this paper, the author thinks that the specific response of the Chinese enterprises is to be explored in many ways. The strategy is important, but these should only play a role in the overall effect of the already existing strategy After all, as long as the case involved is the respondent, no matter how the result is, the economic loss will be more or less. Therefore, in the final analysis, for Chinese enterprises with the main target market in the U.S. market, it is constantly increasing Strong intellectual property awareness (especially patent awareness), increased product R & D and timely application in the United States and obtained
【學位授予單位】：復旦大學
【學位級別】：博士
【學位授予年份】：2010
【分類號】：D971.2;DD912.29
【引證文獻】
相關博士學位論文 前1條
1 余利紅;中美知識產權保護摩擦的政治經濟學分析[D];華中科技大學;2011年
相關碩士學位論文 前1條
1 王慧;美國“337條款”及我國應對策略研究[D];東北財經大學;2011年
，本文編號：2354126
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