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pISSN : 2982-5903 / eISSN : 2982-5946

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2020, Vol., No.28

  • 1.

    Suggestions on the criminal protection of trademark right in China

    LI, YU , HUANGFU, MINGGUO | 2020, (28) | pp.1~24 | number of Cited : 0
    With the advent of economic globalization, trademarks play an increasingly important role in the development of the world economy. From the “world intellectual property index” published by WIPO in 2019, we can see that the number of trademark applications has reached a new high, maintaining a nine-year continuous growth momentum. In 2018, there were about 49.3 million valid trademark registrations, an increase of 13.8% over 2017, including 19.6 million in China alone, 2.4 million in the United States, and 1.9 million in India. With the increase of the number of trademarks, the number of trademark infringement cases is also increasing, and the case also presents a trend of complexity and diversification. In this trend, we should perfect and analyze the trademark law and relevant laws in order to better realize the protection of trademark rights. The administrative protection of intellectual property is a relief mode with Chinese characteristics. The understanding of trademark infringement disputes is also mostly recognized as civil infringement disputes. In this situation, how to regulate trademark right through criminal relief is particularly important.At present, the trademark protection in the criminal law of our country is still very weak, and the relevant policy is not perfect. This makes some lawbreakers break the rights of trademark owners through legal loopholes, and then the interests of trademark owners will be lost. All in all, how to better realize the criminal protection of trademark rights is urgent.
  • 2.

    A Study on the Legal Problems of the thesis Retrieval System

    JIANG-BENHAI , Park Sang Sik | 2020, (28) | pp.25~42 | number of Cited : 0
    In recent years, academic misconduct in colleges and universities has once again come to the public's attention, and the number of infringement disputes caused by academic misconduct in practice has been on the rise year by year. This article try to the perspective of intellectual property law as a breakthrough point, combined with the concrete and the data visualization analysis, hot, hot cases in recent years and the social public opinion gives reasonable definition to the academic misconduct at present stage, to clarify the legal relationships between academic misconduct and copyright infringement, analyze the existing in the current college misconduct paper detection mechanism inherent defects. At the end of this paper, the author combined practice and legal philosophy theory on the legal issues caused by some thoughts. Our country should further optimize the academic misconduct detection system. The similarity detection data of paper is the important evidence rather than the only basis for the identification of academic misconduct. It is necessary not only to strengthen the supervision of the providers and users of academic results testing, but also to strictly enforce the obligation of the publishers to review the results of academic papers. The public, especially college students, experts and scholars, should realize the value behind the results of intellectual labor. It is of great legal and social significance to strictly regulate academic misconduct.
  • 3.

    A Study on the Legalization of the Qualification Right in the “Separation of Three Rights” of Rural Homesteads in China

    LI, YUANYU | 2020, (28) | pp.43~70 | number of Cited : 0
    The “separation of three rights” reform of rural homesteads in China was proposed for two reasons. On the one hand, the right system of homesteads needs to be improved; on the other hand, changes have been recorded in respect to the environment in which the homestead system operates. The corresponding expression of the newly proposed qualification right cannot be found in legal texts, which poses a reform dilemma that needs to be resolved. In terms of the function of the qualification right, a view shared by most researchers is that farmers’ basic living interests are realized through it. However, in regard to the realization of the qualification right, different theories have been developed, including “the theory of surplus right”, “the theory of membership right”, “the theory of independent right”. In this light, the path of the legalization is diversified. Based on the basic logic in which it was created, the qualification right should be a new and comprehensive right. It overlaps with some contents found in the membership right and the use right, yet differing considerably from them. Due to its nature, the following suggestions are put forward: the qualification right be named independently; its content be established in a reasonable way; the conditions for obtaining it be clarified; the circumstances in which it extinguishes be investigated; its registration be carried out; the methods for its relief be explored.
  • 4.

    The Activation of the Nuclear Power Plant Decommissioning and the Legal Problems of Export Support and Regulation

    Jeong Sang - Keun | 2020, (28) | pp.71~98 | number of Cited : 0
    The incumbent administration is making a change in its existing energy portfolio by taking a power-generating policy. Increasing unemployment in the nuclear power plant sector, reducing various subsidies for nuclear power plants, reducing local taxes, and resulting slowdowns in the nuclear power plant industry and the local economy around nuclear power plants are becoming visible. To address this, the revitalization of the nuclear industry is necessary, as well as the revival of the power generation industry itself, as well as the newly expanded dismantling industry. I think there is room to check whether the overall downturn in the nuclear industry can be overcome by the existing support system for nuclear power plants. It was previously thought that there was a lot of support in the nuclear power plant sector and the surrounding areas, but there was relatively little support for the nuclear power industry, and it was difficult to obtain the industrial inducement effect of the area as the KHNP's direct support for the operator was not sufficiently funded and focused on resident acceptance rather than the local industry. It is also worth considering a plan to increase the local resource facility tax by 50 percent to expand the size of the aid funds, and to ensure that the amount is spent solely on revitalizing the local industry. Can the new decommissioning market replace the existing power generation market? Currently, the size of the two markets is only about 10 percent of the power generation market. Moreover, the technical link between the two markets aside, there is a time difference in technology peak, which makes it difficult to relocate the workforce between industries. Efforts are required to enhance the technological capabilities of the dismantling market itself and expand the domestic and overseas markets by developing necessary technologies. At the same time, it will have to improve the dismantling system to improve efficiency. It is believed that the dismantling of the nuclear power plant requires sufficient funds because it takes a considerable amount of time and cost, and that supplementary work is needed to establish maintenance regulations for the provision reserve by improving the provision system currently adopted during the fund establishment and the provision calculation method in detail. In addition, it is deemed necessary to set up a dismantling communication device centered on KHNP, such as France's Areva, in order to clearly evaluate and create the costs of dismantling, handle the office of nuclear power plant destruction, secure the dismantling technology, increase exports, and increase international exchanges. In the early stage of the industry, vitalization measures should be taken at home and abroad. It will be necessary to place an order for the dismantling facilities project early by developing the dismantling project into a protective business, and to carry out research and development and commercialization work for the technology upgrading as a helper of the dismantling research institute. In particular, high levels of technology and office processing capabilities are required to handle spent nuclear fuel, which has been gradually growing in proportion to the nuclear cycle transaction. In order to enhance technology processing capabilities, a combination of technical development support, certification cost support, financial support, and manpower training support will have to be provided. Finally, there should be sufficient understanding of the legal system for overseas advancement along with the capacity of the dismantling project. The law system for technology protection requires understanding of the Nuclear Nonproliferation Treaty(NPT), which includes: (1) technical protection measures to enable the Minister of Commerce, Industry and Energy to exercise disposal rights at the national security level; (2) security guidelines to prevent the outflow of research and development products; (3) closed-door actions of industrial technology by trial; and (4) the Nuclear Nonproliferation Treaty (UN Proliferation Treaty), which is the norm of Korea- U.S.S.A.A.
  • 5.

    Analysis of the WTO Panel and Appellate Body's Reports on Import Ban of Japanese Seafood and Implications for Responding to Similar Disputes

    Choi Hye - sun | 2020, (28) | pp.99~134 | number of Cited : 3
    Abstract PDF
    On April 11, 2019, there was the WTO Appellate Body’s ruling on the SPS measures against the Japanese seafoods by Korea. In February 2018, a panel ruling was made, which the panel did not accept the contention of the Korean government on major issues. The panel found that the SPS measures by the Korean government were more restrictive than necessary, arbitrary or unjustifiable discrimination, and a disguised restriction on international trade. The Korean and Japanese governments have appealed the panel's judgment in April 2018, and the final decision on the dispute was made in a year. An earthquake of magnitude 9.0 occurred in the northeastern region of Japan on March 11, 2011, causing 20,000 deaths and 2,500 disappearances. The tsunami that occurred after the earthquake caused a breakdown in reactors 1-4 of the Fukushima Daiichi Nuclear Power Plant operated by Tokyo Electric Power Company, resulting in the flow of contaminated water containing significant amounts of radioactive materials into the sea. The occurrence of this accident raised strong concern about the safety of Japanese seafood in Korea, and the Korean government adopted measures such as import ban of Japanese seafood and additional radioactive residue testing requirements in 2011 and 2013. When the Korean government adopted these measures, the Japanese government strongly opposed them and initiated a dispute settlement procedure in accordance with the WTO dispute settlement procedure. After that, it took about four years, and finally the Appellate Body's final decision was made, and the Appellate Body changed most of the panel's main findings in February 2018, which is unprecedented in the history of the WTO dispute settlement process. The main issues addressed in this case were whether Korea's measures are more restrictive than necessary to achieve their appropriate level of sanitary or phytosanitary protection set by the Korean government, whether Korea's measures were arbitrary or unjustifiable discrimination, whether Korea's measures were legitimate as a provisional measure, and whether Korea's measures violated the principles of transparency. First, the Panel acknowledged that the level of protection established by the Korean government was not a quantitative standard, but at the same time the Panel regarded the level as the consumption of less than 1 mSv / year contradictorily. Accordingly, the Panel concluded that Korea's measures were violation of Article 5.6 of the SPS Agreement because Japan's alternatives would meet these criteria. However, in this case, the Appellate Body deemed the panel to be unreasonable because the level of protection set by the Korean government used both quantitative and qualitative standards. Second, regarding whether the Korean measures were arbitrary or unjustifiable discrimination against Japanese foods under similar conditions, the panel acknowledged that the Fukushima nuclear accident caused a relatively high level of radioactive contamination in the sea near Fukushima. At the same time, however, large-scale radioactive spills occurred before the Fukushima nuclear accident, and the risks of radioactive contamination were similar for Japanese food and the food products from other origins because foods from all countries around the world are at risk of radioactive contamination. On the other hand, the Appellate Body said that the finding of the panel was illegal because it had to consider territorial conditions in consideration of accessibility and local accumulation of pollution. Third, regarding violations against rules of provisional measures, the Panel determined that the measures of Korea were in violation of the provisions because they did not meet all four cumulative requirements for admitting violations of Article 5.7 of the SPS Agreement. On the other hand, the Appellate Body addressed that when the Japanese government requested the establishment of a panel to settle the dispute, the government has not insisted on violating Article 5.7 of the Agreement. Based on the Korean Government's allegations that Panel violated in Article 7 and 11 of the Agreement, the Appellate Body declared the panel's finding under Article 5.7 of the SPS Agreement was moot and of no legal effect. Finally, the panel found that the Korean government did not publish the contents of the regulations in detail, and the government did not respond to the Japanese’s second inquiry at all. The Appeals Body also supported the Panel's finding on the lack of necessary explanations to be included in the contents of the Korean government’s publishment.