【Research Center for the Legal System of Intellectual Property】

Activities

Should IPR Earnings be Considered as Property to be Distributed at Divorce?

RC Yi Yuan

Japanese law stipulates that property gained within the span of marriage is considered as individually owned by each spouse. Thus, one party's IPR earnings are not considered as community property to be distributed at divorce in Japan. However, in a country where property gained during the marriage is considered as jointly owned, IPR earnings are within the scope of distribution of property at divorce.

For example, in China, IPR earnings gained during the marriage are considered as community property and a disposal right of the property is equally granted to both parties of the married couple. (Article 17 of the Marriage Law of China) In addition, the Judicial interpretation of Marriage Law(2) of PRC Supreme Court states "IPR earnings" are "property earnings actually gained or will be apparently gained within the span of the marriage". According to this interpretation, one party's IPR earnings gained or will be apparently gained within the span of the marriage are considered as object of distribution of property at divorce.

So it becomes an issue whether one party's IPR earnings should be considered as object of distribution of property or not when a Japanese and Chinese couple gets divorced.

Generally speaking, the issue of distribution of property at divorce is regarded as a matter of validity of the divorce. When a divorce proceeding is brought in Japan, the applicable law is determined by the order of priority such as the law of the couple's mutual country, the law of the mutual habitual residence of the couple, and the law of the most closely connected country. However, if Japanese spouse has habitual residence in Japan, the applicable law should be Japanese law. (Article 14 and 16 of Japanese Conflict Law)

Then, if a Japanese spouse of the Japanese and Chinese couple has habitual residence in Japan, or both spouses have it in Japan, IPR earnings is not considered as community property to be distributed because the applicable law for divorce is Japanese law. On the contrary, if both have habitual residence in China, IPR earnings are considered as community property to be distributed at divorce.

God only knows whether this is lucky or unlucky to the divorcing couple.