Text|Liu Law lectures
Editor|Liu Law Lecture
In recent years, due to the increased awareness of enterprise competition and the weak awareness of the protection of enterprise goodwill rights, infringement of enterprise goodwill rights has occurred from time to time.
In mainland judicial practice, civil remedies such as cessation of infringement and compensation for losses are often used to deal with commercial reputation infringement cases, and these protective measures cannot effectively protect the right to goodwill.
summary
Goodwill is a legal concept, which refers to the intangible market value and reputation formed by market entities in long-term business activities, and is the quality and reputation of goods or services closely related to market transactions, which reflects the attractiveness of goods or services to consumers, and consumers' willingness to purchase goods or services.
In essence, the right to goodwill is a civil right. Paragraph 2 of Article 106 of the General Principles of Civil Law stipulates that the right to goodwill is protected by law, but this provision is too principled and lacks operability. This paper intends to discuss the civil protection of goodwill rights from the empirical research.
Legal analysis
- Research background
Goodwill is an important intangible asset in the business activities of an enterprise, plays a pivotal role in the development of the enterprise, and is the basis for the continuous operation of the enterprise. Under the conditions of market economy, goodwill right is an important part of the property rights of market entities and an important civil right, which has the characteristics of non-transferability, inheritability and property.
Paragraph 2 of Article 106 of the General Principles of the Civil Law of the mainland stipulates: "Citizens and legal persons enjoy the right to reputation, and their personal dignity is protected by law, and it is forbidden to damage the reputation of citizens and legal persons by means of insult or slander." However, the law only provides for the protection of goodwill rights in principle and lacks operability.
- Research methods and content
Research method: Through the combination of research and discussion, the collected data is analyzed, the status, problems and causes of civil protection of goodwill rights are summarized, and corresponding countermeasures and suggestions are proposed.
Research content: First, it examines the cases of infringement of goodwill rights that have been reported by the media in recent years; The second is to examine the court's adjudication thinking on cases of infringement of goodwill rights in judicial practice; The third is to examine the identification of infringement of goodwill rights in media reports; The fourth is to examine the main ways to pursue civil liability for infringement of goodwill rights; Fifth, it examines the main basis for pursuing civil liability for infringement of goodwill rights in judicial practice.
The purpose of the investigation: first, to analyze the main problems existing in cases of infringement of goodwill rights and find out legal countermeasures to solve them; Second, from the perspective of judicial practice, explore how to establish a sound protection system for goodwill rights and effectively protect the legitimate rights and interests of goodwill owners.
3. Sample analysis
We have sorted out and summarized the cases of infringement of goodwill rights involved in judicial practice, including the following aspects: (1) cases in which plaintiffs sue on the grounds of infringement of goodwill rights; (2) the plaintiff's lawsuit for damages on the grounds of infringement of goodwill; (3) A lawsuit filed by the defendant for infringement of the right to goodwill. For comparative analysis, we also provided statistics on the types of infringements involved in these cases.
The results show that when hearing disputes over infringement of goodwill, courts will not only consider the provisions of the law on general provisions, but also consider the special circumstances involved in specific cases, and determine the relevant application of law through legal interpretation, case guidance, etc. This also reflects the difference in understanding of the protection of goodwill rights in judicial practice.
Of course, we cannot deny that due to the continuous development of society, courts will also encounter new situations and problems when hearing disputes over infringement of goodwill rights. With the development of relevant theoretical research and judicial practice, courts will further improve their theory and practice in hearing disputes over infringement of goodwill rights.
4. Legislative advice
From the above empirical analysis, it can be seen that the mainland's civil protection legislation on the right to goodwill, on the one hand, does not provide specific protection measures, on the other hand, it lacks operability, and it is difficult to form effective regulations on goodwill infringement.
Therefore, in the long run, legislation should clarify the civil subject status of goodwill rights and provide for them as an independent civil right; Improve the relevant system judicially, and impose legal sanctions on acts that infringe on the right to goodwill.
5. Judicial advice
From the legislative perspective, the protection of goodwill rights in the current General Principles of Civil Law in mainland China is limited to enumerative provisions, that is, "other objects", and has not yet established a complete civil protection system for goodwill rights.
In judicial practice, in order to carry out civil protection of goodwill rights, it is necessary to further refine and improve on the basis of paragraph 2 of Article 106 of the General Principles of Civil Law, and strengthen the operability of civil protection of goodwill rights.
First of all, the connotation and extension of the object of goodwill right are clarified, and some new objects are included in the scope of goodwill right object, such as commercial reputation, product quality, service quality, etc. Second, improve paragraph 2 of Article 106 of the General Principles of Civil Law to provide experience for judicial practice. Finally, the system of goodwill rights should be further improved at the legislative level.
Consideration may be given to interpreting "other objects" in paragraph 2 of Article 106 of the current General Principles of Civil Law in the mainland, interpreting it as "including civil rights and other legitimate rights and interests". This can not only solve the problem that the current laws and regulations on the mainland are too principled and not very operable, but also provide more experience for judicial practice to learn from.
epilogue
In today's rapid economic and social development, people's consumer demand for goods and services is increasing, market competition is becoming more and more intense, and goodwill is an intangible asset formed by enterprises and their operators in market competition, and is a special intangible asset formed in the long-term business activities of enterprises, which is irreplaceable and exclusive.
Therefore, as a new type of civil right, the goodwill right has certain particularity and importance. The protection of goodwill rights is conducive to maintaining the order of fair competition in the market, strengthening the sense of competition of enterprises and operators, and stimulating the vitality of the market economy.