我中心石巍教授在American Business Law Journal 2010年第47卷第3期发表论文Globalization and Indigenization: Legal Transplant of a Universal TRIPS Regime in a Multicultural World .
American Business Law Journal 2010年第47卷第3期
Globalization and Indigenization: Legal Transplant of a Universal TRIPS Regime in a Multicultural World .
作者：石巍（南开大学法学院）
Introduction: The emergence of the World Trade Organization (WTO) Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) has revolutionized the conventional attributes of intellectual property rights (IPR) and triggered rapid evolution of the political ecology of the North–South relations. Since then, the IPR protection has been managed in an accelerated standardization process across the world, with developing nations being ardent participators. The transplantation of intellectual property law via the WTO has posed as a unique model of legal trans- plant imposed by industrialized nations in the context of neoliberal globalization.
Substantial emphasis has been placed on the concept of legal trans- plant in the context of comparative law ; very little scholarship, however, has been devoted to the significance of the legal transplant of TRIPS as animportant international treaty. This article attempts to shed light on the interaction between IPR harmonization and local adaptation in the context of comparative law and legal transplant.
As a general discussion, while divergence between the optimists and skeptics of the theory remains, more scholars tend to agree on the transferability of foreign laws, provided that a ‘‘fitting-in’’ process, which makes the importing legal system adaptive and receptive to a different socioeconomic environment, is optimized. This fitting-in process is a key step in ensuring that a foreign law takes root in indigenous soil and, to this end, requires necessary flexibility for countries with varied social, economic, and cultural conditions. However, in light of the global enforcement of IPR, TRIPS adopts a universal standard of harmonization of intellectual property and does not define standards and procedures to be followed on an ad hoc basis. Under such circumstances, developing countries may hesitate to achieve the international standard before domestic adaptation takes place. It is therefore not surprising that, while the transplant of TRIPS has ostensibly been embraced by almost all the countries, there still remain unresolved tensions as to the legal reform in light of law and development.
Legal transplant is a complex topic and a comprehensive discussion of the theory is beyond the scope of this article. This article considers the harmonizing effect of TRIPS and the global enforcement of IPR through a discussion of legal transplantation and cultural adaptation. Part I examines the harmonizing effect of TRIPS and its implications to the countries at different development levels, particularly countries in the process of industrialization. It argues that the peripheral role of the developing countries from participation to assimilation in the process of globalization has exemplified the significant harmonizing effect of the TRIPS Agreement.
Apart from focusing on the global intellectual property regime, Part II seeks to demystify the cultural facets of East Asian countries in the process of legal harmonization, taking specific account of Confucianism as a dominant philosophy that underpins attitudes toward legal reform. Having examined the harmonizing effect of the TRIPS Agreement and the distinctive cultural traits of the Confucian zed region, Parts III–V provide case studies of three countries Japan, Korea, and China that have emerged in East Asia and have transplanted international IPR norms into their national legal systems during their modernization process. I argue that the involvement of the pre-industrial countries in the global economy illustrates their strategic reorientation and concludes that legal assimilation is an inevitable cost of the participation in the global trading system.