Class: Doctor Class of 2017 of Law School
Time: October 29, 2018
Form: theme speech + group discussion
Place: rear main building 1922
Host: JIANG Zongyan, DIAO Shun
First: All rise and sing the national anthem.
Second: theme speech
LI Zhaoquan: Role of Thinking and Mode of Rule of Law in Exercising Party Self-governance Fully and Rigorously (20min)DIAO Shun: Talk about Idea of Rule of Law from Packaging Decoration Case of Guangzhou Pharmaceuticals Corporation and JDB (20min)
Third: comment and discussion (15min)
JIANG Zongyan points out that rule of law is one of the important contents of socialist core value. Today, our class will hold a class meeting themed in “I and Socialist Core Value”, welcome to share your opinions. Next, JIANG Zongyan announces the meeting agenda, and the meeting formally starts.
First, all rise and sing national anthem.
Second: theme speech
LI Zhaoquan gives speech: Role of Thinking and Mode of Rule of Law in Exercising Party Self-governance Fully and Rigorously
LI Zhaoquan considers that “strengthening Party self-governance” means high-standard Party self-governance, as the unification of Party spirit and leadership with value, organization and institution, it requires institutionalization of way of Party self-governance. The key of institutionalization of Party self-governance is to give full play to the thinking and mode of rule of law, and transforming important concept and idea of the Party into laws in the Party and relevant legal code. Democracy in the Party and supervision out of the Party are improved through regulating the behaviors of Party members and cadres, so as to realize normalization and long effect of Party self-governance.
LI Zhaoquan considers that the cause analysis of Party self-governance effect includes: (1) Influential factor of Party self-governance effect, which can be divided into organization leadership, democracy in the Party, supervision out of the Party, institution. (2) Factor of organization leadership plays a leading role. Strengthening Party self-governance is the fine tradition of the Party, and how to improve Party self-governance mechanism is the core to strengthen Party self-governance.
On the role of thinking and mode of rule of law in the strategic layout of “exercising party self-governance fully and rigorously”, LI Zhaoquan considers that: (1) Thinking and mode of rule of law are required by strategic layout of “exercising party self-governance fully and rigorously”. As the derivative of legal concept, thinking and mode of rule of law are not only applicable to national governance and government management, but also play an important role in Party self-governance work. (2) Thinking of rule of law and institutionalization regulation. Only by realizing institutionalization regulation of Party self-governance mechanism and realizing institutionalization , normalization of strengthening Party self-governance can the strategic objective of strengthening Party self-governance not change with the change of region, can the Party development be promoted and Party vigor improved, so as to guarantee the rationality of the Party in power and favor the long-term ruling of the Party. (3) Right guarantee thinking and governance democratization. The fundamental objective of rule of law is to safeguard the right of citizen. Thinking of rule of law requires depending on the realization of safeguarding and guaranteeing right, not only thinking according to law, but using law as the keyword of thinking and realizing rational thinking decision through publicizing law. Governance democratization embodies the right guarantee thinking.
DIAO Shun gives speech: Talk about Idea of Rule of Law from Packaging Decoration Case of Guangzhou Pharmaceuticals Corporation and JDB
DIAO Shun considers that the conflict and dispute caused by combination of different commercial logos or labors are frequent, and existing Chinese laws do not have effective guide for this, which leads to the dilemma of applicable law in packaging decoration case of Guangzhou Pharmaceuticals Corporation and JDB. Current protection path or intends to unilaterally protect right of specific entity and causes interest unbalance, or submits right from commercial logo to the entity to co-own, which is not favorable for subsequent dynamic flow of commercial logo. To solve these problems, under the background of compiling civil code, it is necessary to introduce accretion rule of traditional real right to property law through mixed type legislation mode, abide by random legal code prior to the stipulation of relevant party, judge whether the accretion of commercial logo is formed according to the main standard of “conversion test” and auxiliary standard of “value differential test”, then obtain the exclusive right of commercial logo according to the party with greater contribution, and make up relevant input and income of the other party.
DIAO Shun appreciates the idea of Supreme People's Court in solving dispute from the perspective of interest balance, but disagrees with the judgement of Supreme People's Court on sharing by Guangzhou Pharmaceuticals Corporation and JDB. The reasons include: (1) When the co-ownership rule is not perfect in the field of intellectual property right, will the dispute be stopped after judging the both co-own the red can package? In such co-ownership, what is the share of Guangzhou Pharmaceuticals Corporation and JDB respectively? How the co-ownership rule be exercised when any of Guangzhou Pharmaceuticals Corporation and JDB licenses the third party to use the red can packaging without impairing the legal right and interest of others? (2) Is it the best way to realize interest balance by judging Guangzhou Pharmaceuticals Corporation and JDB to share the red can package? DIAO Shun considers that in the field of intellectual property right, to promote circulation and transformation of intellectual product, exclusive ownership of intellectual product should be encouraged, and the co-ownership should be restricted.
DIAO Shun considers that using the cooperation of real right and creditor’s right in accretion theory to solve the right ownership and interest share of different commercial logos or combination of commercial logo and labor can overcome interest unbalance in which only one party is protected, the contribution of the other party is neglected, can minimize the co-ownership of commercial logo to promote dynamic flow of commercial logo, and can overcome the difficulty caused by intellectual property right in the situation of imperfect co-ownership rule to judicial application.
Third: comment and discussion
Commentators: LI Mengyang, LI Hao
LI Mengyang totally agrees with LI Zhaoquan, and considers that legal system construction in the Party should be strengthened and improved in the following two aspects: realize coordination and unification of laws in the Party; strengthen supporting construction of existing legal system in the Party. On the other hand, the relationship between laws in the Party and national laws should be clarified. Although laws in the Party is a “soft law” and is normative in a broad sense, from the realistic level, laws in the Party are different from national laws in both formulator, enforcement and scope of validity. If the relationship between laws in the Party and national laws cannot be correctly clarified, it will impair the authority of laws in the Party and national laws, and obstruct the realization of institutionalization of Party governance mechanism.
LI Hao agrees with DIAO Shun, and considers it righteous to strengthen research in making intellectual property right law a civil law since the requirement on compiling civil code at the Fourth Plenary Session of the 18th Central Committee of the Chinese Communist Party. Existing data shows that the accretion protection path of commercial logo will not have negative influence on the accretion rule, instead, it cannot only provide a new solving idea for similar dispute of packaging case of WLJ and JDB, but also is applicable in solving the dispute of combination of other commercial logo.
Discussion from other students:
GAO Mou shares his opinion in the competition of Daoxiang Village trademark in the south and north, and considers that enterprise should not develop the thinking of expelling or restricting competitor from entering relevant market by litigation, instead of abusing weapon of law, they should win by quality and establish brand thinking through advertising.
GU Li talks about the idea of rule of law from the latest AI hot spot, and considers thinking of rule of law should be established also for the development of AI industry. For example, Patent Law is necessary to protect the independent invention result of AI, through comparing relationship of employer and employee of post invention, endows AI with the position of inventor and grants patent right to AI user.
Finally, DIAO Shun says that it is meaningful to hold “I and Socialist Core Value” Theme Class Meeting, which can make everybody further recognize socialist core value. He expects to discuss relevant topic with classmates next time.