Download Journal №1, 2013

V. Kryzhna

Concept and contents of intellectual property rights

P. 3–7

Proposed article devoted to the analysis concept and content of intellectual property rights.

It is shown conditionality of the concept of «intellectual property», especially when comparing the powers of the owner of the thing and the owner in the sphere of intellectual property. It is noted that the distribution mode of ownership of the results of creative activity, and the application of standards of the right of ownership of objects of intellectual property is not possible. For example practice of the Russian Federation which at legislative level refused the term “intellectual property” in favor of the term “intellectual rights», shows expediency balanced approach to rejection of existent and the introduction of new legal terms.

Conducted analysis of the content the terminology used.

Attention is drawn to two-pronged structure, which includes the personal non-proprietary rights and proprietary rights to intellectual property, secured by article. 423 and art. 424 of the Civil code of Ukraine, as well as on the features of the intellectual property rights are: the absence of a limit the circle of persons who can simultaneously use objects of intellectual property rights; enforcement of intellectual property rights is limited in time; the effect of property rights on the results of creative activity is limited in the space of the territory of the state, which recognized the results of the objects of intellectual property; free the use of objects of intellectual property; the distinction between intellectual property rights and the right of ownership of the thing, which do not depend on each other.

The author analyses the components of the intellectual property rights. It is shown that although the right of ownership and intellectual property rights are absolute, the wording in the legislation of the powers happens in different ways. So, the powers of the owner are fixed on the positive side, it has fixed the right of a person to possess, use and dispose of the thing When it comes to the owner of the intellectual property rights, the wording is both on the positive side (the right to use the object of intellectual property rights and the exclusive right to allow use of an object of intellectual property rights), as well as with the negative (the exclusive right to prohibit the illegal use of the object of intellectual property rights, including to prohibit such use.

The analysis shows that need balanced to use the terminology, especially when it comes to legal categories established not only in domestic but also in international practice.

V. Mykytyn

Intellectual property rights validity term

P. 8–15

This article deals with duration of the intellectual property rights.

Described the problem statement given those terms and their definitions, considered dynamic and static rights law, the mechanism of action of law, the effectiveness of the law. Among the important legal factors of the effectiveness of the law include: the legal quality (legal character) legislation, the degree of social conditioning and legitimacy (accounting, legal agreement and compromise the interests of different social classes, groups, etc., taking into account public opinion), the level of legal awareness and legal culture of citizens and officials, the general state of legality and law and order in society, especially in the sphere of law-enforcement activity.

Is carried out the analysis of researches and publications of last decade with the conclusion that there are no complex researches of the civil-legal aspects of the periods of the action of property intellectual property rights of this period practically. At the same time it is necessary to recognize as property rights of legal subject of intellectual property those subjective rights which generate a to some property interest for this subject.

The property rights of the object of intellectual property rights – the subjective rights of the participants of legal relations for the results of intellectual activity in production, science, literature, art and other spheres. Property rights may arise from actions and other legal facts provided by civil legislation related to the possession, use and disposal of property, property rights.

The civil legislation of Ukraine with the purpose of ensuring the exercise of subjective civil rights of the subjects of civil relations introduced the concept of timing of implementation and protection of civil rights. Timelines for implementation and protection of civil rights are for to regulate the civil circulation, thus affecting the realization of the civil-economic relations, protecting their members. In the modern civil turnover of value of ‘terms’ are various. Some of the terms regulate the time of emergence, change or termination of civil rights and duties, other set a deadlines for their implementation, finally, there are those who provide the participants of civil legal relations the time for the protection of their violated rights. The appointment of terms of realization of civil rights is primarily to ensure an authorized person of the real possibility of use to him his own subjective right to the satisfaction of their interests. Contains 9 of the articles of the Civil Code of Ukraine, which regulate the periods of validity of the intellectual property rights.

O. Shtefan

Preventive measures as preliminary injunction aimed at preventing and protecting copyright

P. 25–35

It is shown that the process of proving a breach of copyright and related rights is one of the most complex proceedings in the mechanism of protection. There are some works which consider certain questions of the problem of preventive measures aimed at the prevention of violations of copyright, however complex the problem itself is not considered.

The purpose of the work is to disclosure defined concept and essence of preventive measures, while the subject of study is valid theoretical positions that characterize them. The current Civil Procedure precautions are not provided. However, the existing international instruments precautions are the norm. Foreign experience shows that the coercive measures without competitive examination will include the following measures. Seizure of pirated copies, items and tools used for their production. Sealing of premises where carried counterfeit action. Order one who keeps the mentioned items to provide complete information about the customer and documented. The list of coercive measures in case of a public notice, which causes harm to the copyright and / or related rights.

Considered normative acts, which stipulate the use of preventive measures. Shows the number of entities that can apply to the economic court for the adoption of measures. Provides the procedure of submission of documents on the implementation of preventive measures. The list of measures for adoption by the economic court of the evaluation of the applicant in the decision of a question on the implementation of their application. The possibility of ensuring the applicant’s claim against by the pledge. Describes the procedure of consideration of the statement on the adoption of preventive measures and the possibility to appeal against the relevant action in the appeal procedure.

The analysis of certain provisions of Model Code of Intellectual Property of the CIS countries and shows its progressive nature relative to previous, pre-trial, methods of protection of the rights of. Provides procedures confiscation of the infringing objects by the example of UK. Draws attention to the necessity of making changes to the current legislation , aimed not only at a more detailed testing of species of these activities, but also on the development of clear procedures of their application. Existing procedure measures from the stage of adoption by the court ruling, including its execution, practically nullifies all attempts to use coercive measures to collect evidence (the notifications offender).

V. Drobyazko

Civil liability in Ukraine for the counterfeiting and piracy of copyright and related rights

P. 16–24

In the States the responsibility for counterfeiting activities and piracy in the sphere of copyright and related rights.

Lists the legal means of the responsibility for the violations as deliberately, and/or commercial activities. Noted the role of the facts having legal value in cases of violation of copyright. Describes the basic list of copyright violations, in particular, is a list of the violation of property rights. It is reported about the way of determining the size of the income unlawfully obtained by the offender. It is shown purpose of infringement of copyright and related rights, as well as the means of proving the illegal exploitation of a work or object of related rights.

Describes in details the methods of protection of copyright and related rights. It is noted that one of the most important ways is to ensure the negotiations between the owner of the rights violator of these rights. Are fixed by the law measures of a coercive nature, through which is carried out the restoration of the violated rights and the impact on the offender. Recognition of rights is a necessary condition the use of other methods of provided by law protection. Termination actions that violate the law or threaten of violation. Compensation of losses as in the form of money, and the transfer of the victim copies of counterfeit products at the expense of which may fully or partly cover the damage caused. Recovery of illegally obtained income. The payment of compensation. The compensation of moral damage, while the reviewed options compensation for the damage.

Shows other civil ways of protecting copyright and related rights, known in particular with international experience. Great attention is paid to civil ways of securing a claim in court cases on violation of copyright and related rights. Application of the specific interim measures to secure the claim. A decision on the inspection of premises, in which, as expected, are actions related disorders. Imposition of arrest and seizure of copies of works in respect of which it is supposed that they are counterfeit. Seizures and destruction of accounts, which may serve as evidence of illegal activities. Considered a possibility of the plaintiff collateral as preventive measures of the abuse of a provisional measure taken by the court.

In article it is shown, that in Ukraine there are fairly strict civil punishment, under which falls and the responsibility for counterfeiting activities and piracy in the sphere of copyright and related rights.

I. Venediktova

Protection of legitimate interests in the competition of intellectual property rights

P. 36–41

The proposed article is devoted to the analysis of competitiveness of the rights to trade marks and industrial design and the specifics of the protection of the interests protected by the law proprietor of rights and stakeholders.

It is shown expediency of intellectual property rights as exclusive rights and as a kind of absolute rights, with all objectively inherent features; highlighted features, which are based on the prohibition with respect to third persons; emphasis main problem in the protection of the law-protected interests of the owners of rights to results of intellectual activity – competition of the rights of the same order on the objects of different systems of legal protections.

Analysis of allowing character of the legislation regarding the possibility of providing to the objects that have a graphic and/or volumetric signs, legal protection as industrial designs or as a trademark (mark for goods and services). First of all: means of packaging (bottles, perfume bottles) and a variety of confectionery products of a special form.

Great attention is paid to fundamental differences of industrial design and trademark (mark for goods and services): the first is the result of the creative activity of man in the field of the artistic constructing, and the second is the means for individualization of goods and/or services.

It describes the requirements, which must comply with the objects, which can obtain legal protection, or as industrial designs, or as trademarks.

It is mentions the right of the owner of the patent for an industrial design and of the owner of certificate of the sign for the goods and services (trade mark).

On the basis of a study of the legislation, doctrine and judicial practice of the conclusion is made about the ways of protection of the interests protected by the law. From the point of view of the author of the article, as an industrial design protects the creative result, the volume of trade mark is the only means of individualization of goods, the certificate of the sign for the goods and services can block the process of registration of rights to a patent for an industrial design. Therefore, he believes that the need to protect the interests of the creators of the creative results in the case of possible competition of the rights arising from various documents of title.

Shows some examples of protection of violated interests protected by the law concerning the rights to means of individualization. The analysis shows that in the case when the person concerned has the protected interest to use a specific object of intellectual property rights, which has a protective document, it should file a case on cancellation of state registration and the recognition of a patent as invalid in case of absence of the criteria of protectability and thus be able to use a certain result.

V. Tatkov

On the topic about the court for intellectual rights

P. 42–47

Work is concerned with aspects of the formation of a specialized court for consideration of disputes in the sphere of intellectual property. It is believed that the introduction of special procedural rules for dispute resolution in intellectual property is premature measure that will not contribute to harmonization of national procedural law. However, it is necessary to analyze strengths and weaknesses of special courts in intellectual property rights, including in the context of the practices of the states that are such courts.

It is noted that the disputes in the sphere of intellectual property is traditionally belong to one of the most difficult. Their consideration is not always promptly and qualitatively, and the decisions taken quite often cancelled out by courts of higher instances. To a large extent these circumstances caused by specifics of such disputes, the court practice in respect of which is characterized by a sufficient variety. To help the judges shall be appointed by the judicial examination of the objects of intellectual property. However, the duration of the judicial examination, the lack of unified methodological principles and, in places, the ambiguity of the conclusions of judicial experts at the decision of questions of intellectual property is often the cause of delay of consideration of disputes in the sphere of intellectual property, revision and cancellation of the adopted in the case of decisions. One of the directions of the improvement of the judicial law enforcement in the sphere of intellectual property, in the opinion of the experts, is the creation of a specialized court for intellectual property.

On the example of the Russian Federation shows the conditions of the court with intellectual property rights. Provides a list of cases, which will be addressed by the court and discussed the composition of the just judgment. Considers issues of resolution of disputes regarding intellectual property issues in the courts of Ukraine and borrowing experience of the Russian Federation.

It referred to the possibility in the future, with a view to deepening specialization of economic courts, creation the «patent» courts in the country. It will allow solving the conflicts regarding the jurisdiction of the disputes in the sphere of intellectual property and create a unified judicial practice in this category of court cases. The above will contribute to the uniform application of current legislation in this sphere. Specialization of judges when considering disputes arising in the sphere of intellectual property, will contribute to deepening the knowledge necessary for the effective protection of the rights and interests of the participants of legal relations in the sphere of intellectual activity. Undisputed is the conclusion about the necessity of further analysis and research of the problem.

S. Revutskiy

Prerequisites for the formation of the national innovation system under the influence of economic globalization

P. 48–50

Considered certain phase of development of the process of internationalization of the economy, they have their special properties for each of the countries, which participate in it, the international division of labour, cooperation, economic integration and globalization. The latter is closely linked with the development of the national innovation system (NIS). This set of interrelated organizations directly engaged in production and commercial implementation, as well as complex legal institutions of the financial and social nature, ensuring the effective functioning of such organizations.

It was noted that the increasing co-operation leads to consequences, the solution of which depends on the state. It has to adapt the internal institutional system to the requirements of the international cooperation. Together with the interests of a particular country in the conditions of growing interaction can be protected only at the supranational level (for example, in the sphere of environmental protection, establishing the «rules of the game» in the information sphere, the protection of intellectual property, etc.). Presents the principles underlying the work of the overwhelming majority of the international organizations.

It is noted that the development of the NIS country should provide for optimal integrity and adaptation of its institutional structure in the NIS of the EU countries: in particular, this concerns the harmonization of innovative legislation, formation of financial institutions of the innovative restructuring of the economy (such as the specialized banks for reconstruction and development, innovation, the leasing, venture capital funds, the Agency for regional development of innovation support infrastructure (for example, a network of technoparks, innovation centers, business incubators, consulting and engineering companies. This will expand the NIS on the establishment of the international community in the field of innovation and implementation of effective international investment and of innovative projects at the expense of growth of small and medium-sized businesses.

It is noted that for Ukraine remains traditional and tested in the world the path to economic progress through concentration of industrial and financial capital, the most successful form of which may be the formation and activities of the industrial-financial groups.

Industrial-financial groups, as confirms the practice of their activity, is today the most advanced form of cooperation in economy, though the attempts of such cooperation has long been known and have always been in the means to provide for the effective development of the economy.

G. Androshchuk

Commercialization dual-use technologies: the U.S. experience

Р. 51–65

It is noted that the world market of hi-tech products by 39% are controlled by the companies of the USA. As a source of innovation this country has an extensive network of research institutions of different forms of ownership and subordination. The most importances are the issues of legal protection of intellectual property, distribution of property rights. Formed a system of commercialization of technologies in the United States, defined its legislative base.

It is noted, the process of transfer of technology, originally designed for military purposes, in the civilian sector of the economy. Introduction of state regulation and control over international transfers of technologies is caused, as a rule, with the competitive struggle on the world market. The use of intellectual property in economic activities is carried out in the context of commercialization. Are the basic organizational forms and methods of commercialization of research results, which were most widespread in the international practice. It is shown that the main of entrepreneurship is to receive the excess of assets over costs.

The problem of piracy and the struggle against it. Great attention is paid to the protection of technical data or software to and during the transfers of them abroad. Shows the role of the defense Department of USA in the production of intellectual property and contractual practice of the Ministry of when it was created. Described is quite flexible and effective mechanism of stimulation of the state of commercialization of technologies of dual-use and access to them, are the main elements. It was noted that the process of formation and development of normative-legal base of the USA in the area of increase of efficiency of use of results of intellectual activities, performed at the expense of the state budget, is a continuous and is located in the center of attention of the branches of power.

The analysis of a condition and prospects of development of dual-purpose technologies in Ukraine, the prospects for their commercialization. It is noted that available at the enterprises of the documents of title of the sphere of intellectual property does not provide the protection of national scientific-technical documentation in foreign countries. There are negative tendencies in the sphere of use of service inventions in our country. It was noted that the lack of mandatory requirements on the state registration of agreements concerning the disposal of intellectual property rights in the legislation of Ukraine provokes manifestations of unfair competition, uncontrolled outflow of domestic scientific-technical developments abroad, causing problems in the area of law enforcement. The above negatively affects the level of economic security of Ukraine.

S. Rabovska

Some peculiarities of inherent succession after death of a private shareholder

P. 66–68

Theoretical studies and well-founded proposals for the further improvement of normative regulation specified in the title of the article relations and the existence of the practice of their application is few. The problems that arise in the inheritance of property rights, connected with the participation in economic societies, in the national civic literature is scarcely explored. It is examining some of the features of hereditary succession of the property rights and duties after the death of the physical person – the participant of the economic companies and rationale of the proposals on further improvement of legal regulation in this field defines the goals and objectives of this article. The problem has become particularly urgent in connection with requirements of the Civil code of Ukraine.

It is shown that by hereditary succession heir of a natural person (both in law and bequest), which was party to the company, shall acquire the right of participation in it, which defines it as a (new) of the participant. Together with the status of a participant and a set of property rights and responsibilities of the heir also acquires and such personal non-property rights as the right to participate in management of the company in the order defined in the founding document, except as required by law.

It was noted that in addition to personal non-property and property rights, to the persons, which are defined as the heirs of the participant of the company, in the order of hereditary succession can be responsibilities. The duties, which are connected with capital participation in the economic company, should include the obligation of the assignee to answer their property for the obligations in full. to the heirs of the transition well as other rights and duties, the nature of which depends on the type of company and the provisions of special legislation or constituent documents.

It is reported that after the death of the testator – the participant of an economic society, there are two types of hereditary succession. In accordance with the provisions of its founding document can take place complex or standard hereditary succession in respect of the rights and duties of testator – participants of business entities. Proceeding from this, when the inheritance of shares in the charter capital of business entities it is important normative determine the order of the inheritance. The possibility of the entry of the heirs in the composition of participants of the economic company is an issue that is of great importance for both of the testator and the heirs, and for the company as a party of civil relations.

L. Krupnova

A value of principle of legality is in activity of the State Enforcement Service of Ukraine

P. 69-74

The analysis of application of mechanisms of compulsory execution of judicial acts in the world practice. It is shown that the available statistical data on the execution of decisions of courts of Ukraine are disappointing. About half of the decisions which have entered into force, and remain unfulfilled. In such a state of affect, and a significant loading of state executors, and the low level of payment for their labour, which affects the provision of State Enforcement Service of Ukraine qualified personnel, and imperfection of the current legislation. All this determines the relevance of the selected for the study in this article topic.

Shows the range of the main tasks of State Enforcement Service of Ukraine, as the Central body of the Executive power, including: implementation of the state policy in the sphere of organization of forced execution of decisions; making proposals on formation of state policy in the sphere of execution of decisions; the provision of timely, full and impartial execution of decisions in the order, established by the legislation; implementation of educational and explanatory work on the issues of implementation, timely, full and impartial enforcement of the decisions, stipulated by the law.

Is considered the new edition of the Law of Ukraine «On enforcement proceedings» and rule of law issues. The law fixed by the requirements of the state executor to implement the decisions binding for all bodies, organizations, officials, legal entities and individuals on the territory of Ukraine. State executor should be provided by at a specified period and a free all necessary information, documents or their copies for the exercise of its powers. Failure to comply with lawful requirements of the state executor shall entail the responsibility according to law.

Of course, today is not enough practice, to fully appreciate the results of the legislative changes. At the same time, their implementation allows the use of positive developments, received implementing judicial decisions in the world practice.

It was noted, that the observance of the principle of legality must be realized all the participants of the relations, that is, the physical and legal entities, and state in the person of authorized bodies and officials. This should be reflected in the organization of the activities of the State Enforcement Service of Ukraine and the state executors directly how about compulsory execution of their legitimate demands, and on their compliance with the guaranteed rights and legitimate interests of legal and physical persons.

It is proposed appropriate at the legislative level to determine the principles on which shall organize its activities State Enforcement Service of Ukraine and how should be the enforcement proceedings, the principle of the rule of law as one of the base, on which is built the activities of public authorities and ensured the implementation of judicial decisions of all without exception of legal entities and individuals.

I. Kushnir

Programmatic having a special purpose method as one of methods of financing of housing

P. 75-81

The article notes that the analysis of the world experience allows to state that the financing of target programs is a method of forecasting of expenditure on priority directions of economic and social development, which is used in the formulation of the budgetary policy of the state in the period ahead. Acquaintance with the international experience in this sphere allows to speak about the fact that the method of the target-program financing is used to improve the efficiency and effectiveness of the use of limited budgetary resources. Of particular relevance of its use shall take effect in times of financial crisis, when the financial resources at the disposal of the organs of public power, significantly reduced. For Ukraine the last factor is of extreme relevance, for the last years, the country was faced with a constant shortage of budget funds and the necessity of their strict economy.

It is shown that in the basis of program-target method in the budgetary process laid approach, the peculiarity of which is that the first shall be determined by the results, which it is necessary to achieve, and then have solved the question of what financial resources are needed to achieve these results. That is, the introduction of program-target method of financing means that the planning of expenditure must be connected with the solution of specific tasks. The method was originally considered as a pilot project, which was implemented in the process of financing of the scientific sphere, starting from 2001. More than ten years of experience in the use of program-target method of financing in Ukraine allows to talk about the positive effects of its introduction, is considered a number of state target programs for its implementation.

Showing the sources of financing for the implementation of the program-target method. The parties noted the expediency of forming the United State register of citizens in need of improving their housing conditions, in accordance with the legislation and are on the housing register. Financing of programmes requires the application of different methods of financing, including a number from the program-target method of financing, budget and Bank lending, investment, mortgage, etc. The need quality regulatory and legal support, especially in the part of determination of the status of the powers of the participants of procedures of financing, as well as peculiarities of operations with financial resources.

Analysis of the existing financial legislation indicate the presence of collisions and gaps in the ratio with the special legislation in the field of construction, which requires a scientific search and the development of proposals aimed at improvement of financial legislation.

L. Cherpitska

Budgetary system of Ukraine as object of the financially-legal adjusting

P. 82-88

The article considers the questions of the essence of the budget system as a legal category and object of the financial and legal regulation. Marked, that the budgetary system can be characterized as a many-sided difficult on the essence concept. With a view to its stable functioning and development the government of the state should pursue a balanced budget policy. In this case, if we speak about the economic component of the fiscal policy, it should be understood that the system of budget organization requires a clear interaction between all of its parts, with a view to performance of tasks and functions, which puts the civil society before the public finances.

Analysis of budget activity allows asserting, that the fixing is at level of legal regulation of a clear order of formation and functioning of the budgetary system shall be sent, including the provision of the relationship between the state and civil society. At that civil society is vested with the ability to influence the actions of the democratic state in the sphere of the budgetary system as the initial component of the public finances.

The features of conduct of fiscal policy. Is carried out the analysis of the previous and existing budget legislation in the part of defining of the concept and principles of organization of the budgetary system. The comparison of Budget Codes of the Russian Federation and Ukraine. It is shown that the change in the composition of the budget systems of the two States are not only in the different components, which are caused by the different political system (unitary and federal), but also a different approach regarding the inclusion of extra-budgetary funds. In Ukraine in the composition of the budget system is not provided for the creation of any extra-budgetary funds, but also directly is prohibited.

It is noted that, according to the Budget code of 2001 to the principles, on which was based the budgetary system, were the principles of unity, balance, independence, completeness, validity, effectiveness, subsidiarity, target use of budgetary funds, justice and impartiality, publicity and transparency, liability of the participants of the budget process now this list is a bit changed. In particular, the expansion received the principle of effectiveness, which currently combines efficiency and effectiveness. Now the same principle of liability of the participants of the budget process for the violations of budget legislation disappeared from the list of principles of the budget system, it is not such, that satisfies the interests.

It is proposed restoration of the provisions on the principle of liability of the participants of the budget process as an integral component of the principles of the budgetary system of Ukraine.

V. Kozachenko

Role of the National bank of Ukraine in activity of the banking system of Ukraine

P. 89-94

The research article is devoted to the issue of the role of the National Bank of Ukraine in the functioning of the banking system of Ukraine, implementation of the functions of supervision and state regulation of the banking sector. It is shown that the banking system is one of the most important market economy structures. This is the most important sphere of national economy of any developed state. Its practical role is determined by the fact that it manages in the state system of payments and settlements. The greater part of its commercial operations of the banking system carries through deposits, investments, credit operations.

Analyzed the provisions of the existing banking legislation, as well as assesses the current status of the banking system of Ukraine with the purpose of determining the place of the National Bank of Ukraine in the process of state regulation of the banking sector, the functions like of the central Bank of the state, in particular concerning the implementation of the banking supervision.

The article analyzes the international practice and the various approaches to the construction of the bodies of supervision of the banking system, international standards in the sphere of banking supervision and the process of their implementation in national legislation and reflected in the documents of strategic character.

The issues on which attention is drawn in the article, is, in particular, the following: legislative function of the National bank of Ukraine; the quality of new standards of banking supervision of their compliance with the modern requirements to the state of the banking system; the rationalization of the use of commercial banks; the problem of stability of functioning of the banking sector.

It is research of status and functions of the central Bank of the state, its powers in the sphere of regulation of the activities of state and private banking institutions, assessment of current banking operations, the introduction of a limit of foreign investment, compliance with the parity in access of foreign capital in the banking system, etc.

It is shown that the quality of new standards of banking supervision of their compliance with the modern requirements to the state of the banking system, meets the needs of its further development, can become the preventive means , which, if not completely eliminates the effect of the assumed following crises, then at least keep the influence on the safe for the national capital market level.

It was noted that the state bodies should determine at the legislative level the strategic importance of the national banking system as a financial economic basis, and consequently, the state sovereignty of the country. The national Bank of Ukraine and other state bodies it is necessary to create favorable conditions for doing as large, and small and medium-sized business, which is a pledge of success of the economic development of the country and its competitiveness in the international arena.

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№ 1 (69), 2013
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