Study On The System Of Infringement Dameges Of Intellectual Property In Judicial Context

The protection of intellectual property is the basic means of stimulating innovation,the basic guarantee of innovation motivity,and the core element of international competitiveness.To strengthen the protection of intellectual property and give full play to the leading role of judicial protection of intellectual property,the key and difficult point is to determine the amount of infringement damages for intellectual property.In light of the problem of difficult proof and low compensation in judicial practice,it is imminent to construct the infringement damages system for intellectual property,which embodies the market value.This thesis is problem-oriented,adheres to positivism,and adopts the logic of “Asking the question—Theory analysis—Economic analysis—Solving the problems” to preliminarily determine the research framework of the theory of the infringement damages system for intellectual property in China.The research combines with the existing problems in calculating the amount of the infringement damages system for intellectual property in judicial practice.It aims to provide suggestions on legislative design and judicial application for constructing the infringement damages system for intellectual property in China,which reflects market value.Firstly,this thesis analyzes the basic theoretical issues of the infringement damages system for intellectual property,defines the connotation and characteristics of the infringement damages system for intellectual property,and analyzes the particularities of it compared with the other tort damages,such as real right and obligatory right.Then,it compares and analyzes the criterion of liability of the infringement damages system for intellectual property,and points out principle of liability for fault should be a principle,while the principle of fault presumption shall be an exception.This thesis clarifies that the scope of compensation for infringement damages for intellectual property rights includes property damages and mental damages.Secondly,this thesis introduces the economic analysis method,and uses various theoretical analysis tools such as minimize the social cost of accidents,Hander rule,costbenefit analysis method,etc.To analyzes the problems in the design of systems for the infringement damages system for intellectual property.It is clear that the reason why the amount of infringement damages for intellectual property is difficult to determine is: "The abstractness of the law" and "The uncertainty of the transaction costs of evidence".Thirdly,this thesis combs the legislative changes about damage for compensation in China's intellectual property law,and compares the legislative features between the "Trademark Law","Patent Law" and "Copyright Law".Judicial practice is the best criterion to test whether the legislative design is reasonable or not.This thesis analyzes the "Top 10 intellectual property cases of the Chinese court",which is typical of judicial practice in China.It finds that determining the amount of compensation in the judicial application is in urgent need of solving the problem of "Application of calculation methods","Low compensation rate" and "The discretionary factors are not clear".Fourthly,the problems exposed in judicial practice have made it necessary for China to return to the conceptual level of the infringement damages system for intellectual property and to clarify the relevant issues of the basic concept.Through research,this thesis clarifies that the infringement damages system for intellectual property in China should be compensatory and punitive.When determining the specific amount of the infringement damages system for intellectual property,China should adhere to the three principles——“The principle of full compensation”,“The principle of discretionary compensation” and“The principle of equitable compensation”.The infringement damages system for intellectual property in China should reflect the three basic values—— “The value of relief”,“The value of prevention”,and “The value of sanctions”.Lastly,clarifying the basic concept of the infringement damages system for intellectual property lays the foundation for reconstructing the infringement damages system for intellectual property in China.In order to establish China's the infringement damages system for intellectual property that embodies market value,this thesis puts forward four specific approaches in legislative design and judicial application.1.Improving statutory damages.Removing the minimum amount of statutory compensation,and refining discretion factors of statutory compensation in the judicial interpretation,and exploring the application of “The method of five-level and three-step”.2.Introducing punitive damages.The subjective conditions of punitive damages shall be unified as "intentional",the penalty ratio is unified as "More than doubled or less than three times",and refining the applicable rules for punitive damages in the judicial interpretation.3.Adjusting the calculation method.Cancelling the order of application of the calculation method,the parties shall choose freely.4.Establishing evidence rules system for intellectual property rights infringement.Using evidence disclosure rules and evidence preservation rules correctly,applying proofimpeding rules and superior evidence standards to determine the amount of compensation flexibly,and improving the evaluation system of the infringement damages system for intellectual property.In short,establishing China's the infringement damages system for intellectual property that embodies market value.Legislative design and judicial application should go hand in hand,improve the design of rules in legislation,give full play to the leading role of judicial protection of intellectual property rights,and harmonize the judicial referee standards of damages for intellectual property rights infringement.Thus,solve the problem of "burden of proof" and "low compensation" and adapt the amount of the infringement damages system for intellectual property to the market value.It is effective to protect the legitimate rights and interests of the rights holders,to maintain the order of the development of the intellectual property market,and to provide a powerful judicial guarantee for the construction of a powerful country in intellectual property and science and technology in the world.