When shanzhai transcends a case and becomes a common social phenomenon, we need to go beyond the existing legal provisions and think about this phenomenon from a higher height, not just stick to the existing legal provisions. The chaos caused by shanzhai is the result of various conflicts of interest. Therefore, we need to carefully weigh the conflicting interests and adjust the existing laws on the basis of weighing, so as to re-establish the legal order.
Intellectual property rights mainly include copyright, patent right, trademark right and unfair competition. Intellectual property protection is the result of conflict and coordination of interests, that is, on the one hand, it protects the legitimate rights and enthusiasm of creators, on the other hand, it protects the overall interests of society and promotes the dissemination and re-creation of knowledge. Therefore, the protection of intellectual property rights is usually timely and regional, and the rights of intellectual property rights holders are subject to necessary restrictions.
As far as shanzhai phenomenon is concerned, some of it may involve infringement of intellectual property rights. For this kind of infringement, the existing laws are enough to adjust, and no special legislation is needed to regulate it. But as a legislator, in the face of such a common phenomenon of shanzhai, is it necessary to reflect on the existing intellectual property laws and whether there is excessive protection for intellectual property owners in some places? Does this protection hinder the dissemination and innovation of knowledge? Does it harm social welfare? It is obviously putting the cart before the horse to judge the legal nature of shanzhai phenomenon simply from the existing intellectual property law.
Monopoly will harm the interests of consumers and hinder the improvement of efficiency and technological progress, so there is an anti-monopoly law to examine and regulate monopoly phenomena and behaviors. Is the shanzhai phenomenon partly caused by monopoly? If the legislation of anti-monopoly law is not in place and the enforcement of anti-monopoly institutions is not in place, the market will adjust in the possible direction in the face of monopoly. The appearance of shanzhai is, to some extent, a spontaneous counterattack against monopoly. The popularity of shanzhai lies in the self-protection of consumers' welfare deprived by monopoly.
Therefore, it is necessary for us to reflect on the existing anti-monopoly law and anti-monopoly law enforcement.
The Product Quality Law and the Consumer Protection Law are enacted to protect the interests of consumers, because consumers are usually vulnerable groups. However, does the existing product quality law and consumer rights protection law have the possibility of overprotecting and harming consumers' interests? Does it harm consumers' right to choose? Of course, all the products and services we consume are top-notch, but the social situation is hierarchical and consumers are still divided into rich and poor. The needs of the rich and the poor for similar products and services are certainly different. Therefore, under the premise of ensuring the basic needs of personal safety and health, we should allow the differentiation of products and services, rather than simply forcing consumers to consume better products and services at higher prices.
The popularity of shanzhai phenomenon largely meets the needs of the poor for new products and services. Even if the quality is a little worse and the functions are a little less, at least you can enjoy the basic achievements of society and science and technology, which is the real good thing. In this case, it is necessary for us to reflect on the existing relevant laws. In addition to the basic requirements of protecting personal safety and health, the protection scale should be relaxed as much as possible, but consumers' right to know should be more strictly enforced and protected, and consumers should be given the right to choose on the premise of full information.
As far as cottage mobile phones are concerned, some people think that they have not obtained production licenses, network access licenses, and unqualified quality inspections. And think they need to be punished. Judging from the existing laws, this theory is certainly beneficial. However, do we need to reflect on whether these cottage products are really useless and really do not meet the requirements? I do not think this is necessarily the case.
In fact, shanzhai products have not obtained the necessary approval, license and certification. I think it is more important to reflect on whether the existing control laws are appropriate, and whether there are problems such as inefficiency, corruption and excessive fees in the implementation process, which makes it impossible for cottage products to obtain the necessary approval, license and certification. In my opinion, many existing regulatory laws and departments hinder innovation, efficiency and progress. If we can truly put people first, govern for the people, and treat manufacturers of all sizes equally, I believe many shanzhai will become genuine.
So in my opinion, shanzhai products are, to some extent, spontaneous amendments to existing control laws and competent departments that hinder innovation, efficiency and progress. The so-called evil law is illegal.
In short, the phenomenon of shanzhai cannot be criticized and banned simply and rudely, and of course it cannot be advocated unprincipled. Instead, we need to carefully analyze all kinds of shanzhai phenomena, reflect on the existing laws and their implementation, weigh the pros and cons, and achieve the encouragement of encouragement, the restriction of restrictions, the revision of amendments, and the persistence of persistence.
It is easy to build a car behind closed doors in a house, but the laws created in this way are not necessarily good laws, and they may not be widely observed. Only by carefully observing the society and the real life and needs of the people can we find out the real laws. The evolution of laws prohibiting fireworks and firecrackers is proof of this.