Absence and Relief of Intellectual Property Rights in Common Property of Marital in the Civil Code
The marriage and family section(Article 1062)of the Civil Code adopts a combination of enumera-tion and generalization to clarify that intellectual property gains belong to the common property of marital,but the source of intellectual property gains—the intellectual property itself—the ownership of this property is not specified.The absence of intellectual property rights in the joint property of husband and wife leads to con-flicts and difficulties in judicial practice.The proof that intellectual property should be regarded as the joint property of common property of marital should be based on the marital status,fully considering that intellec-tual property is property right in essence and the concept of the joint system of property acquired after mar-riage.The practical solution is to incorporate"intellectual property rights"or"intended interests of intellec-tual property rights"into the general clause of"other property that should belong to the common property"through judicial interpretation,or grant a"restrictive right"to the non-IP owner.The way to solve it in the fu-ture is to reconstruct Article 1062 of the Civil Code in future legislation,and replace"intellectual property benefits"with"intellectual property rights(except personal rights)".
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维普
