PRC is no longer seen only as a "world factory". It gains on importace as an global trading partner and many foreign companies try to succeed in Chinese market as importers of their products. Also Czech businesses have already penetrated Chinese market, invested there or are seriously considering expansion to the market. Main objectives of the thesis are to review and characterize main risks, obstacles and barriers which Czech entrepreneurs have to deal with when entering the Chinese market and suggestions how to obviate them.

自美國聯邦巡迴上訴法院於一九九八年State Street Bank一案，肯認商業方法軟體得為法定之專利標的後，全球之金融業、電腦業與網路公司莫不尋求以專利作為保護其商業方法之武器，商業方法專利申請之案件遂絡繹而來。惟商業方法軟體是否得為專利之標的，至今美國學界仍有爭議而見解不一，日本專利局係採與美國專利局相同之立場，然歐洲專利局目前似仍採否定見解。對此一議題，我國已有相當文獻討論，並均採肯定之見解。惟並未對何以可專利性之理由詳予闡述，至於專利侵害之問題，亦未就我國法深入分析。 本文擬自比較法之觀點，分析美國實務運作及學界之論述、歐洲發明專利公約及專利局實務之見解、日本法之規定與特許廳之意見，汲取其中之經驗與見解以為借鏡。第二章首先就商業方法軟體加以定義，並探究現今商業方法軟體之架構及其特殊性，以作為專利標的適格性分析之基礎。第三章分析商業方法軟體之施以專利保護，對產業與實務造成之影響。包括實務所面臨的困難﹙如先前技術資料庫之建立、審查人員之訓練、法院面臨之困難等﹚，及我國軟體產業應如何調適。第四章係探討商業方法軟體之專利標的適格性分析，依次分析美國法之規定與學說實務之見解、歐洲專利公約與專利局之立場、日本特許法之規定與特許廳之態度，以及國內學說實務之見解，並由我國專利法之立法意旨與商業方法軟體架構之特殊性，論述商業方法軟體在現今軟體發展之架構下，應非發明專利保護之標的，另亦就我國智慧財產局所公布之「電腦軟體相關發明專利審查基準」，加以探討並提出個人淺見，並摘錄智慧財產局已核准若干商業方法軟體專利之個案，加以分析。第五章自發明專利保護要件之觀點，探究商業方法軟體專利保護之問題。第六章則自美國法之觀點，分析商業方法軟體於網際網路上，所發生之跨國界專利侵害問題，並試從國際私法之角度，處理此類問題。最後，於第七章提出個人對商業方法軟體專利之淺見，並就我國現行專利制度提出未來保護方向之建議，以為結論。

In the stories of olden times and in those of our own American Indians, we learned of the picture writing of primitive peoples. It became an early method of recording people's thoughts. This was a very useful method at a time when the race was young. This in turn was the beginning of our alphabet, later the beginning of shaping letters into words, and then word into sentences and paragraphs. As our world has grown older, new idea have come into use and we are no longer content to live as our grandparents lived. We travel by fast express trains, high powered auto- mobiles, airplanes, or zeppelins. The radio gives us the news before our papers containing it are on the street. are not able to talk with people on the other side of the world. Business men find this a very valuable means of doing business when time means money. The motion pictures bring us the story of the book we have not had time to read and the characters from its pages talk to us from the screen. In short, we must have quicker ways of doing things.

What makes real life contractual arrangements? How does the law influence real life contractual arrangements? These are everyday questions for businesspeople and commercial lawyers. The traditional ‘imperative’ view of law assumes that business people contract ‘in the shadow of the law’ and contractual arrangements conform to what the law says. But empirical studies on contract practice suggest that contract law may, in fact, play a very insignificant role in real life contractual arrangements. This thesis provides a sociological view of the role of contract law in real life contractual arrangements in the context of the Vietnamese market. Specifically, this thesis applies an institutional law & economics approach to investigate how social structures of the market influence contractual arrangements to marginalize contract law in the Vietnamese market. Drawing on two surveys of contract behaviour in the Vietnamese market, this thesis finds that real life contractual arrangements respond to the institutional structure of the market as a whole, rather than only ‘the shadow of the law’. Institutional changes in the Vietnamese market suggest that there exists a merchant law system, constituted of traditional moral norms and social structures in the market. This merchant law system continues to order contractual arrangements in the market, despite the introduction of a transplanted contract law system. Disagreeing with the imperative approach, this thesis claims that contract law reform should conform to the institutional structure of the market to reduce transaction costs of contracting and to provide an effective framework for real life contractual arrangements.