Research On Intellectual Property Damage Compensation System

Domestic research and judicial practice of intellectual property infringement damages system,has always focused on the composition of intellectual property infringement,liability and other issues of qualitative exploration,and less attention to intellectual property damages function,principles,the amount of the determination of the core system such as a full demonstration and empirical analysis.As a result,the legal effect and social effect of the implementation of the intellectual property damages system in China has not been satisfactory,and does not meet the requirements of the innovation-driven development strategy in China.At this stage,the academic and practical circles believe that the main reason for the severe situation of intellectual property protection is that the system of compensation for damage to intellectual property rights has not yet given full play to the protection of rights holders,curbing the institutional effects of infringement,and has made certain research results.However,most of the existing research results are simply borrowed from the general civil damage compensation system,Most of the conclusions and suggestions can not effectively solve the prominent problems of malicious infringement,repetitive infringement,low compensation,difficult to prove and so on,which the protection of intellectual property in China faces.Based on the special characteristics of intellectual property damages system and the judicial practice in China,this paper designs the research framework,conducts in-depth research and puts forward countermeasures and suggestions around the main axes of "the constituent elements of the system itself and the application status quo","the system function and basic principles","the specific compensation methods and their applicable rules" and "the countermeasures for system improvement".In the part of "the constituent elements of system noumenon and the current situation of application",the author aims at exploring the core content and connotation of the system of compensation for intellectual property damage.Intellectual property damages system is obviously different from the traditional civil damages system in terms of damage meaning,system function,basic principles and multiple compensation methods.At the same time,through the empirical analysis of 1769 intellectual property damage compensation cases,we can clearly find that there are some problems in the judicial application of intellectual property damage compensation system in China,such as the lack of basic theoretical guidance,the limited application space of specific compensation methods,the large discretionary space of statutory compensation,and the lack of special evidence system.In the part of "system function and basic principle",the author deeply analyzes the system function and basic principle of intellectual property damages.Due to the severe infringement situation,the effect of compensation for damages restrains the potential for social innovation and the traditional concept of civil damages is difficult to explain the breakthrough of the statutory compensation ceiling,and then emphasizes the importance of the "preventive function".Intellectual property damages should put the "preventive function" and "relief function" in the same functional value level,in order to play its institutional effect of curbing infringement and promoting innovation.The traditional civil compensation for damages is based on the principle of "leveling relief",while the compensation for intellectual property damages should adhere to the principle of "leveling relief".At the same time,it should clearly introduce and establish the "market value principle" and "proportional principle",and construct the "three principles" system of intellectual property damages.On the basis of applying the principle of "leveling relief" as the goal of compensation,the principle of "market value" is applied to determine the "basic" amount of compensation for damages,and then the "proportional principle" is applied to determine the final reasonable amount of compensation for damages.In the section entitled "modes of reparation and rules governing them","actual loss" should emphasize the causal relationship between the tort and the result of the damage;In addition,when applying the compensation methods of "actual loss" and "tort gain" to determine the amount of damages,the judge should follow the adjudicative logic of "applying the principle of apportionment and taking the principle of overall market value as an exception".When applying the method of "royalty compensation",the scope of reasonable royalty base should be expanded and the judicial experience of calculating reasonable royalty base outside the country should be appropriately cited;At the same time,it is necessary to establish a quantitative adjudication standard of "statutory compensation".Furthermore,China should introduce punitive damages in an all-round way,and consider the factors of fine multiple of damages in the application of the rules.Based on the above studies,this paper argues that China 's intellectual property damages system needs to be improved from the substantive law,procedural law and related supporting systems.In the dimension of substantive law,it is necessary to revise the statutory order and applicable relationship of the methods of compensation for intellectual property infringement,that is,to construct the compensation basis of compensation for intellectual property infringement,and to cancel the statutory order limitation of applying the methods of compensation for damage,etc.Delete the legislative wording "multiples" of the reasonable multiples of royalties and replace it with "reasonable royalties";To amend appropriately the minimum award limit of statutory compensation to the maximum award limit,and to harmonize the legislative wording of "statutory compensation";Put forward "intentional infringement" and "commit more than two infringements or serious infringement" as the applicable conditions for punitive damages,and unify the range of multiple of compensation.In the procedural law dimension,the author proposes to establish the system of litigation evidence disclosure and evidence preservation in the stage of evidence collection of intellectual property damages litigation.Establishing the rules of obstruction of proof and lowering the standard of proof in the litigation trial.In terms of related supporting measures,we should emphasize the guiding role of the judicial policy of intellectual property damages;Strengthen the judicial demonstration function of intellectual property case guidance system,and introduce the evaluation mechanism of intellectual property damages and judicial accounting system when determining the amount of damages.Through the above-mentioned multi-dimensional perfect countermeasures,and then play the normative effect of intellectual property damages system.