Liability for guarantee of rights defects is a written legal system derived from Roman law in civil law countries. Germany, Japan, and Taiwan have conducted in-depth research on this, and the common law system also has similar legal systems. An earlier discussion in China can be found in Mr. Liang Huixing's "On the Seller's Liability for Defect Guarantee" (contained in "Comparative Law Research" Issue 1, 1991), and later Gui Juping's "On the Seller's Liability for Defect Guarantee, Positive The article "The Relationship between Infringement of Creditor's Rights and Product Liability" (contained in the "Civil and Commercial Law Series" edited by Liang Huixing, Volume 2, 1994), this article mainly discusses the liability for liability for defects in rights from the perspective of tort law. Rarely involved. In recent years, our country has clearly stipulated the liability for warranty against defects in rights in Articles 150-152 of the Contract Law. This shows the necessity of establishing this system in legislation. However, in terms of theoretical research, there are still many issues that need to be discussed. This issue is discussed in detail in Mr. Wang Liming's article "A Comparison of the Sales Contract Systems between China and Germany" (published in "Comparative Law Research" Issue 1, 2001). I noticed that the issue of liability for guarantee of rights defects is not only because of the necessity of establishing this system, but also because of the particularity of intellectual property rights that is different from traditional property rights and creditor's rights, which makes this issue more complicated. Therefore, this article attempts to explore the intellectual property issues in the rights defect guarantee system from the perspective of intellectual property rights. 1. Overview of defect warranty liability Defect warranty liability originated from Roman law and had its prototype in the Law of the Twelve Tables and the Compilation of the Doctrine of Justinian. Around the third century B.C., the Si Shi, who was in charge of market affairs, promulgated a rule called "Si Shi Yu Ling" (Adile) for the sale of slaves and livestock. According to this regulation, when the goods being sold were defective in quality, the buyer A person may file an action to terminate the contract or to reduce the price. Only when the seller made a clear guarantee on certain qualities of the object when the contract was concluded, the buyer may make an exception to claim damages. 1 The defect warranty liability of Roman law was inherited by the civil codes of many modern countries. The common law system also has a defect warranty system with the same functions as the civil law system. Today, defect warranty liability refers to the debtor in a paid contract, and the payment proposed by him should guarantee the integrity of his rights and the qualified quality of the subject matter. 2 If the debtor breaches this warranty obligation, it shall bear liability for defective warranty. Therefore, the liability for warranty against defects is divided into two types: warranty liability for defects in things and liability for rights defects. Defect warranty liability exists in all paid contracts except labor contracts, and also exists in some free contracts. However, in sales contracts, defect warranty liability is the most typical, and it can also be caused by contracts resulting from the payment of things or rights. Legal actions are all fundamental issues. Therefore, foreign laws mostly stipulate defect warranty liability in sales contracts, and apply it mutatis mutandis to other contracts. The purpose is to better protect the legitimate rights and interests of consumers and safeguard their rights. Transactions are safe. Liability for warranty against title defects originates from the Roman law recourse warranty and the corresponding right of recourse action. It means that the seller has a civil liability to the buyer for the subject matter of the sale and that no third party can claim any rights. That is, when a third party seizes the subject matter from the buyer based on ownership, usufruct or mortgage rights, the seller shall bear the liability for guarantee, and the buyer shall thereby obtain the right of security action against the seller. The recourse security in Roman law was inherited by the civil laws of various countries in the modern civil law system. Strengthened by Italy as a defensive obligation, the French Civil Code stipulates the seller's obligation to prevent repossession. 3[page] Different from the above-mentioned legislation, in the German Civil Code and Swiss Debt Law, it is expressed as an obligation for the buyer to acquire rights. The provisions of the Japanese Civil Code are similar to those of the German Civil Code, and the Taiwanese Civil Code also follows the example of Germany and Switzerland, stipulating that the seller has the obligation to obtain the rights of the buyer. Common law and American law have systems similar to those in civil law systems. For example, the British Sale of Goods Act and the American Uniform Commercial Code stipulate that the seller must have the right to sell the subject matter of the sale and ensure that the goods are free of encumbrances and that the buyer can occupy them in peace. In principle, intellectual property rights, as "property rights with rights as the subject matter", exist in the system of warranty liability for rights defects. However, intellectual property rights, as a special type of "intangible" rights, are very different from rights such as creditor's rights and securities. Furthermore, their buying and selling relationships often involve the transferor, transferee, and a third party ( The relationship between intellectual property rights holders) and the nature of their claims or property rights are also special. Therefore, there are differences between intellectual property rights and general rights in terms of the scope of defect guarantee and guarantee liability.

2. Scope of warranty against defects in rights of intellectual property rights The warranty against defects in rights originates from the system of sales contract for goods. There have been two different views on the scope of application of warranty against defects in rights in the system of sales contract for goods. One view is that the guarantee against defects in rights does not It applies to the sale of things, but only to the sale of rights; another view is that the rights defect guarantee applies not only to the sale of rights, but also to the sale of things. For the sale of things, the seller should guarantee its ownership of the things. For the purchase and sale of rights, there should be guarantee that the rights transferred actually exist. Due to different legislation in various countries, the scope of adjustments to the sales contract system is not the same, and the scope of the guarantee for defects in rights is also different. Article 433(1) of the German Civil Code stipulates: “According to the sales contract, the seller of a thing has the obligation to pay the buyer the thing and to enable him to obtain ownership of the thing. The seller of rights is responsible for The buyer has the obligation to obtain the right. If the buyer has the right to possess a certain subject matter due to the right, he also has the obligation to deliver the object. "Article 437 stipulates the liability for security when buying and selling rights, and Article 451 stipulates this. Risk transfer and costs when buying and selling rights. It can be seen that the scope of adjustment of sales contracts in the German Civil Code includes not only the sales relationship of things, but also the sales relationship of rights. It uniformly adjusts the sales contract system through the sales contract system. The buying and selling relationship and the buying and selling relationship of rights. The definition of sale in Article 130 of my country's Contract Law is: "A sales contract is a contract in which the seller transfers the ownership of the subject matter to the buyer and the buyer pays the price." Because this article only stipulates that the seller transfers the ownership of the subject matter to the buyer. There is no provision on the obligations that the seller in a rights sale relationship should have when the rights are transferred. This shows that our country’s contract law in principle does not apply to the sale of rights in the sales contract system. Therefore, Extending to Article 150 of the Contract Law: "The seller has the obligation to ensure that a third party shall not claim any rights against the buyer with respect to the subject matter delivered, except as otherwise provided by law." It also refers to the property. The obligation of the seller to guarantee the rights and defects in the sale. But this does not mean that our country’s contract law absolutely excludes the rights sales contract relationship and its defect guarantees in the sales contract system, including the sale and purchase of intellectual property rights, such as patent rights, trademark rights, copyright rights transfers, licenses, and defect guarantees. In some civil law countries, intellectual property rights are called "real rights" with "rights as the subject matter" in property laws and security laws. In some common law countries, they are called "quasi real rights in litigation" or "quasi real rights in litigation". "Intangible quasi-movable property", there is no doubt that intellectual property rights, as a kind of intangible property right, are only an alternative object that is different from things in the traditional sense in form of expression, but its core content exists as property rights. The right to the content becomes the subject matter and object of the sale. The basic content of the sale is that one party transfers his property to the other party, and the other party pays a certain consideration to obtain the other party's property. In essence, it is the same as the property. The sales and purchases are the same. Therefore, the scope of the warranty for defects in intellectual property rights should be applied mutatis mutandis to the warranty for defects in rights of property. Article 174 of my country's "Contract Law" stipulates: "If the law has provisions for other paid contracts, such provisions shall prevail; if there are no provisions, refer to the relevant provisions of the sales contract." This shows that the scope of guarantee for intellectual property rights defects should first be subject to Adjustments to special laws or other legal systems, rather than the provisions of the sales contract system, and if there are no other legal provisions, the provisions of the sales contract shall apply. [page] 3. Rights defects of intellectual property rights and warranty liability Rights defects of intellectual property rights, in principle, refer to defects in incomplete or missing rights and defects in the rights themselves that do not exist at all. Common situations include: 1. Sale and purchase of things Defects involving incomplete or missing rights, including defects caused by infringement of a third party's industrial property rights or other intellectual property rights, that is, in a traditional property sales relationship, the goods sold have industrial property rights or other knowledge owned by a third party. Property rights, defects caused by third party claims of rights. The liability for warranty against defects in rights in this situation is no different from the liability for warranty against defects in rights in the sale of general property. The buyer can claim liquidated damages, actual performance, rescission of the contract, compensation for damages, etc. to require the buyer to bear liability. According to the provisions of my country's contract law, the seller's warranty liability for defects in rights arises based on the "right" of a third party to claim intellectual property rights, and does not naturally arise because of a "request" made by a third party. Moreover, in accordance with the warranty for defects in rights, According to the principle of liability formation, if the rights defects are removed during performance, there is no need to bear the liability of the rights defects guarantee.

If a third party claims intellectual property rights, although it already exists when the sales contract between the seller and the buyer is established, if the seller can eliminate the third party's claim during performance, such as "reconciliation" or patent rights being Even if the trademark is declared invalid or the trademark right is revoked, the seller will not violate the obligation to guarantee the rights against defects. 2. In the sale and purchase of rights, the rights themselves do not exist at all, that is, in the transfer and licensing of intellectual property rights, the seller’s patent rights, trademark rights, copyrights, trade secrets and other rights do not exist at all. Typical examples include the seller signing a transfer contract with a patent that has been declared invalid or terminated or even non-existent, or the unauthorized seller signing an intellectual property transfer contract, etc. In terms of nature, the sale of non-existent rights is an act without the right to dispose of, and the contract is not automatically invalid, but is a contract whose validity is yet to be determined. If the obligee ratifies or the seller obtains the right of disposal, the transfer contract is valid from the beginning and the defect in the rights has been eliminated; if the obligee fails to ratify or the seller does not obtain the right of disposition afterwards, the transfer contract is invalid and a third party (right (person) asserts rights against the buyer. In this case, even if the buyer is in good faith, the system of acquisition in good faith cannot be applied, and the seller can claim liability for defective rights; if the buyer is in bad faith, he knew that the seller had no right to dispose of when entering into the sales contract. (There is a title defect), the buyer does not have the right to claim for warranty against title defects. 3. Defects in the sale and purchase of rights involving incomplete or missing rights include: (1) Signing of a transfer or licensing contract without the consent of the intellectual property owner and the right holder; (2) Transfer or licensing of pledged intellectual property rights; ( 3) In the transfer or licensing of intellectual property rights, the third party asserts its rights to the intellectual property rights against the seller or transferee. The above situations are all defects of rights, and the warranty liability for defects in rights should be applied. It should be noted that the issue of defect guarantee in the contract law of our country involving the purchase and sale of intellectual property rights is only stipulated in Article 349 of the Contract Law: “The assignor of a technology transfer contract shall guarantee that he is the The legal owner of the technology, and guarantee that the technology provided is complete, correct, effective, and capable of achieving the agreed goals.” Accordingly, the transferor in the technology transfer contract shall bear the warranty against defects in the “subject matter” and the warranty against rights defects. , it can be inferred that the original intention of the legislation is to require the seller in the sale of intellectual property rights to bear comprehensive warranty liability for rights defects. However, because the sales system of my country's contract law only adjusts the purchase and sale relationship of things in principle, and does not adjust the purchase and sale relationship of rights. However, intellectual property laws such as the Patent Law, the Trademark Law, and the Copyright Law do not provide for a defective rights guarantee system for the sale of intellectual property rights. In particular, according to popular opinion, the guarantee of complete rights applies to both the sale and purchase of things. , also applies to the sale of rights, while the right guarantee for the existence of rights only applies to the sale of rights, which means that in the second situation, the transferee can, in principle, "quasi-apply" the provisions of the sales contract to claim against the seller As for the liability for guarantee for defects in rights, in the third case, only liability for breach of contract can be claimed, but liability for guarantee for defects in rights cannot be claimed. This reflects the shortcomings in the legislation regarding liability for guarantee for defects in rights in the sale of intellectual property rights. [page] 4. Rights defects caused by intellectual property disputes in international trade One of the important characteristics of intellectual property is its regional nature. So far, except for areas where intellectual property integration is progressing very quickly (such as the European Union and French-speaking African countries), traditional intellectual property rights such as patent rights, trademark rights, and copyrights can only be created in accordance with the laws of certain countries, and they can only be created in accordance with the laws of certain countries. It is valid in the territory where it legally arises. In private international law, a principle accepted by most countries is that tangible property shall be governed by the law of the place where the property was acquired or the law of the place where the thing is located, while intellectual property rights shall be governed by the law of the place where the rights are registered or where the rights are claimed. 4 Moreover, in addition to intellectual property legislation, most countries also have corresponding provisions in the law on the sale of goods. One of the situations of defective rights referred to in the UK's Sale of Goods Act 1979 refers to the sale of goods that infringe copyright or patent, and is clearly stipulated. A well-known case is: Niblett V. Confectioners Materials (1921) 3KB387, which involves a can of condensed milk with the label "Nissly Brand". Due to infringement of the patents/copyrights of Nestle and Anglo-Swiss, the two companies threatened to sue the buyer, who was forced to remove the labels and resell them at a loss.

Afterwards, the buyer claimed damages from the seller, and the court determined that the seller had violated Section 12 of the UK Sale of Goods Act 1979. 5 There are similar provisions in the United States Uniform Commercial Code (UCC). Therefore, in the international sale of goods, this issue of warranty against rights defects is particularly complex. It involves the multi-party rights and obligations of the seller, buyer, and intellectual property right holder. In view of the particularity and complexity of the above situation, the International Sale of Goods Law provides the following provisions on intellectual property issues in the international sale of goods: The goods delivered by the seller must be such that a third party cannot claim any rights based on industrial property rights or other intellectual property rights or goods required, but the seller's obligation to deliver goods without third-party rights or claims is limited to two circumstances: (1) if at the time the contract is concluded the parties know that they will be resold to or used in a certain place, the goods are delivered Must be free from intellectual property claims under the law of the place of resale or use, (2) In other cases, the goods delivered must be free from intellectual property claims under the law of the place of business of the buyer. Moreover, the seller will not be held liable in the following two situations: (1) the buyer knew or could not have known about the request when the contract was signed, (2) the request occurred because the seller had to comply with the technical drawings provided by the buyer, Patterns, programs or other specifications. At the same time, unless the Seller is already aware of the third party's rights or claims and their nature, the Buyer is obliged to notify the Seller of such third party intellectual property rights or claims within a reasonable time. 6 There are mainly three types of intellectual property disputes frequently encountered in my country's foreign trade: 1. Intellectual property disputes in product exports. Due to the regional characteristics of intellectual property rights, the same product may be considered infringement of the intellectual property rights of others in one country, but may be considered infringement of the intellectual property rights of a third party in another country. In this regard, my country has certain regulations in foreign trade. We have learned very painful lessons and there are too many cases in practice. Therefore, it is the seller’s obligation to pay full attention to the legal system and intellectual property protection of the buyer’s country. [page] 2. Import of products Intellectual property disputes. So far, more than one million trademarks and patents have been registered in my country, of which foreign companies account for a considerable proportion, resulting in more and more intellectual property disputes. There are also actual cases in China: French Company A obtained patent protection for concentrated ammonium nitrate production technology in France and China respectively, and had a dispute with French Company B. Domestic Company C imported a set of concentrated nitric acid production equipment from French Company B. After building the ammonium production line, Company A filed a patent infringement lawsuit against Company C and Company B in China. Intellectual property disputes in product imports often have adverse effects on enterprises. Foreign companies often invoke the provisions of Article 42 of the United Nations Convention on Contracts for the International Sale of Goods. If the seller does not know or cannot know the third-party knowledge when entering into the contract, If property rights exist, after the goods are shipped, if a third party makes intellectual property claims on the goods, the buyer shall bear all responsibilities. Based on this, the seller can argue that the buyer is in a better position than the seller to understand the legal system and intellectual property protection of the country where the buyer is located, and propose that the buyer should bear the responsibility. The seller's defense still has certain factual and legal basis. 7 3. Intellectual property disputes in customer OEM transactions According to the provisions of Article 42 of the Convention, if the product is produced or manufactured in accordance with the technical drawings, patterns, programs or other specifications provided by the buyer, we may No liability is assumed, however, this liability is limited to liability in the sale of goods. In the international sale of goods, the warranty system for rights defects is limited to the seller and the buyer, and cannot prevent a third party from filing a lawsuit for infringement of intellectual property rights. The third party has the same rights against the seller and buyer. It is normal to file an infringement lawsuit. Therefore, parties to a contract should pay full attention to the issue of intellectual property protection of third parties. In particular, special arrangements should be made in the contract in the form of liability reduction or increase in liability to reduce losses, which domestic enterprises should attach great importance to. The conclusion is found in Mr. Liang Huixing's "Recommended Draft of China's Property Rights Law" (Provisions, Explanations, Reasons and Reference Legislation), Article 2, Paragraph 2 (Definition of Property Rights) of the draft stipulates: According to the special provisions of the law, Rights can also be the subject of property rights. The book (page 99) explains that “this kind of property right, such as the right-based pledge of rights as stipulated in China’s Security Law, is called ‘rights and property rights’ in jurisprudence.

Rights can only become the subject of property rights if they are clearly stipulated in the law, and in China's current property rights legislation, there is only one type of right property right: right pledge. Therefore, rights and property rights are not a negation of the concept of property rights, but only an exception." It can be seen that in the draft property law, intellectual property rights are regarded as the object of property rights, but as an exception, in the form of "pledge of rights" The object is included in the scope of adjustment, which also illustrates the particularity of intellectual property rights.