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作为GATT/WTO所规定的非违法之诉是其争端解决制度中的一种特色,对其存在和作用历来为学界所争议,随着乌拉圭回合与贸易有关的知识产权等协定纳入到WTO体制之中,关于非违法之诉的适用问题一度成为争议焦点,TRIPS协定也因此给非违法之诉的适用问题规定了一个冷冻期,如今冷冻期已经届满,围绕着此问题再次形成针锋相对的两派。笔者在通过对非违法之诉正反分析的基础上,指出这一本身含混模糊的制度仍然无法克服其固有缺陷,同时在结合TRIPS协定和知识产权本身所具有的特征以及现实问题的基础上,指出非违法之诉在TRIPS协定下适用并不可行,包括我国在内的广大发展中国家,对其在TRIPS协定下的适用应进行坚决抵制。
As a GATT / WTO non-infringement complaint is a feature of its dispute settlement system, its existence and role has always been controversial academia, with the Uruguay Round of trade-related intellectual property and other agreements included in the WTO system , The issue concerning the application of non-infringement law has been the focus of controversy for some time. The TRIPS Agreement has also provided for a freezing period for the application of non-infringement claims. Now that the freezing period has expired, two opposing groups emerge once again around this issue. On the basis of positive and negative analysis of non-illegal actions, the author points out that this inherent ambiguity system still can not overcome its inherent defects. Based on the characteristics of TRIPS agreement and intellectual property itself and the realistic problems, It points out that the non-infringement suit is not feasible under the TRIPS agreement. The vast majority of developing countries including our country will resolutely boycott their application under the TRIPS Agreement.