| Punitive damages in cases of infringement on intellectual property rights(hereinafter referred to as IPRs) play an important role in strengthening IPRsprotection as well as in punishing and restraining IPRs infringement activities. Thelegal system of punitive damages in cases of IPRs infringement, although mainlystipulated in common law jurisdictions, has exerted substantive influences over thelegislation and judiciary in civil law jurisdictions. In China legal system of punitivedamages has drawn wide attention and triggered heated discussion in both theory andpractice, and the relevant proposal has been incorporated into the draft amendmentsto the codes of patent, trademark and copyright. However, the existing researchachievements from both theory and practice in China can hardly meet the demands ofits legislation and judiciary. In this doctoral dissertation the author conducted athorough and comprehensive research on issues of the historical development,nature, functions, justification, local demands, design of legislative system andlocal enforcement concerning punitive damages through an in-depth analysis fromsuch perspectives as history, ethics, economics, comparative jurisprudence andcase study, so as to deepen the theoretical research on IPRs-related punitivedamages, and as a further step to raise constructive proposals and suggestions onestablishment of China’s legal framework and judicial enforcement in this regard, asa positive response to the demands of the legislation and judiciary for punitivedamages in society.This dissertation consists of three sections, i.e. preamble, main body andconclusive remarks. In the preamble section, the author pointed out the significanceand purpose of selecting the theme of punitive damages, observed and analyzed thecurrent circumstances on theoretical research and judicial practice concerningpunitive damages as well as the defects therein, manifested the research objects andmethods, and finally expounded the academic value and practical significance of the theme as selected in this dissertation.Chapter one Study on History and Current Situation regarding IPRs-relatedPunitive Damages focuses on the legal system of IPRs-related punitive damages fromthe perspectives of legal history and comparative jurisprudence. In this chapter, theauthor elaborated on the following issues: i) observation on the emergence,development and current status of punitive damages in civil infringement cases bothat home and abroad; ii) observation on the emergence and current status ofIPRs-related punitive damages; iii) observation on the attitudes of legislation andjudiciary towards IPRs-related punitive damages in China; iv) researching andproviding answers on the following questions: the reasons for stipulating punitivedamages in ancient laws of both the east and the west; reasons for different attitudesof the main jurisdictions in common law system and civil law system towardspunitive damages; the legal system of punitive damages does not rely on privateenforcement or only serves as a supplementary to the insufficient enforcement bystate authorities; the statutory damages stipulated in American Intellectual PropertyLaw are a special form of punitive damages system; the attitude of Germany as one ofthe civil law jurisdictions towards the legislation and judiciary in cases of IPRsinfringement, etc.Chapter two Study on Nature and Functions of IPRs-related Punitive Damagesfocuses on the very nature and main functions of IPRs-related punitive damages fromthe perspectives of jurisprudence as well as comparative jurisprudence. In thischapter, the author elaborated on the following issues: i) IPRs-related punitivedamages, by their very nature, are civil liabilities rather than quasi-criminalliabilities or such liabilities as under economic law or public law; ii) the legal systemof IPRs-related punitive damages has five basic functions including compensating,punishing, restraining, balancing and working as an incentive, among whichbalancing and working as an incentive are two special functions of IPRs-relatedpunitive damages.Chapter three Study on Justification in Relation to IPRs-related PunitiveDamages focuses on exploration of the theoretical basis of justification in relation toIPRs-related punitive damages from the perspectives of civil law, ethics andeconomic analysis of law as an effort to demonstrate and establish the rationality ofIPRs-related punitive damages. In this chapter the author discussed the following issues: i) the theoretical basis of IPRs-related punitive damages in terms of civil lawlies in: a) preventive function of tort law; b) sociality of IPRs; c) remedies forinfringed IPRs under civil law are difficult; and d) protection over IPRs throughpublic law has its limitation; ii) IPRs-related punitive damages are justifiable from theperspective of ethics and the reasons are as follows: a) justice is the ethical basis oflegal system; b) IPRs-related punitive damages are supposed to realize social justice;c) IPRs-related punitive damages are capable of realizing social justice; iii) thejustification of IPRs-related punitive damages is verified from the perspective ofeconomics, specifically including cost&efficiency analysis and Coase theorem andthe arguments are as follows: a) the economic purpose of IPRs-related punitivedamages is to optimize the allocation of resources; b) IPRs-related punitive damagesmay advance the afore-said purpose; c) punitive damages are necessary for restrainingIPRs infringement activities because of the economic features of such activities. Themain economic features of IPRs include non-deterioration, easy duplication, highdevelopment cost, externalities and non-exclusivity, and accordingly IPRsinfringement activities have such economic features as good imperceptibility andprofitability of activities and ambiguity of losses. Because of the economic features ofIPRs infringement activities, only if punitive damages are imposed on intentionalIPRs infringement activities, can such activities be successfully restrained due to thedisproportion between loss and gaining incurred thereby and ultimately no benefitcoming out of IPRs infringement.Chapter four Feasibility and Necessity Study on Legislating IPRs-relatedPunitive Damages in China focuses on the local demands for legislating IPRs-relatedpunitive damages by looking into the economy, science&technology, culture andcurrent status on IPRs protection in China. In this chapter the author mainly discussedthe following issues: i) the necessity of legislating IPRs-related punitive damages inChina on the following grounds: a) China’s national conditions at the current stagemake it necessary to legislate IPRs-related punitive damages; the afore-mentionednational conditions include the strategic objective of China’s economic and socialdevelopment and the current status on China’s economic, technical and culturedevelopment; b) the current status on IPRs infringement in China has raised objectivedemands for legislating IPRs-related punitive damages; the main circumstancesregarding IPRs infringement in China are:1) rapid increase in number of IPRs infringement cases;2) outstanding phenomenon of intentional IPRs infringement;3)some large-scale companies encourage IPRs infringement activities eitherintentionally or unintentionally; c) liquidated damages under the existing IPRs-relatedlaws and regulations are generally too low for intentional IPRs infringement, inwhich case it is necessary to legislate IPRs-related punitive damages in China; ii)feasibility in legislating IPRs-related punitive damages in China: a) there has beentheoretical basis for legislating IPRs-related punitive damages in China; b) there hasbeen relevant experience in legislating IPRs-related punitive damages in China; c)there are social demands for legislating IPRs-related punitive damages in China; d)the conditions for legislating IPRs-related punitive damages in China have beensatisfied, which include high-quality IP judges, collective jurisdiction over IP casesand the relevant judicial interpretations; iii) rebuttal against the following opinions tooppose legislating IPRs-related punitive damages in China: a) the Chinese legaltraditions are against legislating IPRs-related punitive damages; b) legislatingIPRs-related punitive damages may result in over protection over IPRs; the liquidateddamages under the existing IPRs-related laws and regulations can provide sufficientprotection over IPRs; d) legislating IPRs-related punitive damages is incompatiblewith the current economic development conditions in China; e) legislatingIPRs-related punitive damages may result in too high liquidated damages in IPRsinfringement cases which may further cause injustice.Chapter five Study on Legislative Design and Judicial Enforcement RegardingIPRs-related Punitive Damages in China focuses on how to rationally legislateIPRs-related punitive damages and correctly enforce them in China from theperspectives of comparative jurisprudence and case study. In this chapter the authordid his research on the following issues: i) the pre-conditions for applyingIPRs-related punitive damages, which include a) the infringement should beintentional and even if it’s only once; b) there should be losses caused by infringementsince there should be no damages or punitive damages if there is no loss at all; c) IPRsowners in infringement cases must claim for punitive damages before the end of courtdebate during the first-instance hearing; ii) the applicable scope of the proposedIPRs-related punitive damages is set forth as below: a) intentional infringementactivities; b) infringement on patents, trademarks and copyrights or unfaircompetition conducts; c) direct infringement and indirect infringement; iii) calculation on the proposed IPRs-related punitive damages: IPRs-related punitive damages mustbe capped at twice as much as compensatory damages, which should be equal toroyalty fee of the infringed IPRs determined on a reasonable basis rather thanstatutory damages; iv) judicial enforcement of IPRs-related punitive damages inChina: compensatory damages, as the calculation basis of punitive damages, mayrefer to losses of infringed IPRs owners, infringers’ profit or reasonable royalty fee,but not to reasonable cost for remedy or compensation for emotional distress; v)co-application of IPRs-related punitive damages together with other tort liabilities:punitive damages may be imposed together with cessation of infringement,apologies and elimination of ill effects and may also be imposed together withcompensation for emotional distress.In Conclusive Remarks section the author summarized the main content andbasic points of views in this dissertation and raised proposals for further research onthe theme. A proposed draft legislative document on IPRs-related punitive damages isalso annexed to this dissertation.What’s innovative in this dissertation is as follows: i) the author analyzed thereasons for punitive damages in Tang Dynasty and Song Dynasty; ii) the authoranalyzed the features of punitive damages in ancient laws of both the east and thewest; iii) the author criticized the point of view that the legal system of punitivedamages relies on private enforcement and only serves as a supplementary toinsufficient enforcement by state authorities; iv) the author analyzed the reasons forabandonment of punitive damages by European civil law jurisdictions in recentcenturies; v) the author explained that statutory damages, by their very nature, area special form of punitive damages; vi) the author analyzed and expounded the specialfunctions of IPRs-related punitive damages, i.e. balancing and working as anincentive; vii) the author demonstrated the justification of IPRs-related punitivedamages from multiple perspectives; viii) the author raised legislative proposals forenacting IPRs-related punitive damages in China, including preconditions and scopefor application, calculation on punitive damages, factors to be considered whenassessing punitive damages; the author also raised proposals for judicial enforcementof IPRs-related punitive damages in the future, including how to ascertaincompensatory damages as the calculation basis for punitive damages, the relationship between compensatory damages and statutory damages as well asreasonable royalty fee of infringed IPRs, and co-application of punitive damagestogether with other civil liabilities such as compensation for emotional distress,cessation of infringement, apologies and elimination of ill effects.The places where there remains room for improvement are as follows: i) therelevant data and information regarding punitive damages in foreign countries, forinstance,the materials regarding IPRs-related punitive damages in the legislative andjudicial practice of common law jurisdictions, are not quite sufficient; ii) thediscussions on certain issues, e.g. the functions and justification of IPRs-relatedpunitive damages,are not quite profound; iii) the five chapters are not quite balancedin terms of their length, some of which, e.g. Chapter two, are relatively short; iv)further research is necessary for some issues, e.g. how to make sure that theproposed ratio between punitive damages and compensatory damages is fair andreasonable, how much likelihood there is for the main civil law jurisdictions tointroduce punitive damages into their legal systems, and what consequences willfollow after the legislative body in Taiwan region deleted the relevant clausesregarding punitive damages in its Patent Law in2011. |
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