Discussion On The Concepts "Qinquan" And "The Criteria Of Liability"

This dissertation begins with discussing the difference of the concept "Qinquan"between the intellectual property laws and our traditional views, then completelyanalyzes the distinctions of "Qinquan" and "criteria of liability" among Chinese Mainland,civil law system and common law system, designate our faults in relevant traditionalviews, finally put forward corresponding resolving plans. The first part mainly demonstrates some thoughts arising from a rule of intellectualproperty infringement, that is, where ascertaining whether constituting intellectualproperty infringement or ordering the infringer to stop relevant infringing acts, no-faultliability is applied; where deciding whether compensating for the victim's damage and theamount of the compensation, fault liability is applied, which has been adopted in ouramended intellectual property laws, Whereas the points of this rule conflict with ourtraditional views. This rule indicates that some tortious principles such as "No damage, Noliability" are not applicable in intellectual property infringement, on the other hand theno-fault liability in this rule is totally different with the traditional one, which intrigues theauthor's interest to study the basic concept of "Qinquan" and "criteria of liability".The second part is the analysis of the concept "Qinquan". Qinquan has differentmeanings in civil law system, Chinese Mainland and common law system. From theRoman law, tortious action is always the cause of obligation and merely connected withthe liability of compensation. However, in Chianese mainland, "Qinquan" is concernedwith civil liabilities including compensation. In common law system, there are two wordswhich correspond with the concept "Qinquan": one is "tort". It mainly includes thosetortious actions that should bear the liability of compensation. The other is "infringement".It includes all infringing actions, and the fault or damage is not necessary it's constituent.Finally, the author puts forward that we should use the concept "Qinquan" whichcomposes such liabilities as stopping infringement, not like civil law system in which theform of tort liability is only compensation. The third part is to analyze the concept "criteria of liability". Since the form of tortliability only is compensation in civil law system, fault liability means whether theinfringer has fault is the basis deciding the compensation liability. Whereas, since ourconcept "Qinquan" is connected with civil liabilities, fault liability means that fault is thefinal constituent deciding whether the actor is charged with liabilities. The problem lies inthat it is reasonable fault liability is applied where deciding the liability of compensation,but unreasonable where deciding other liabilities such as stopping infringement. Thedissertation analyzes the differences between the liability of compensation and otherliabilities such as stopping infringement in the aspects of origin, nature and constituents,and then discusses the unreasonable consequences in our "Qinquan" law due to neglectsuch difference. While compensation is the liability in the criterion of fault liability in civil lawsystem, the liability is still compensation in the no-fault liability criterion which iscreated to making up for the fault liability criterion's limitation. In intellectual propertylaws, fault is the constituent when deciding whether to compensate for the victim'sdamage, which is fault liability. The no-fault liability of intellectual property infringementis different with that of civil law system's traditional tort. In the former, liability is suchones as stopping infringement, not compensation. The last part is our choice of "Qinquan" system. In civil law system, asking the infringerto stop infringement, remove obstacles or eliminate dangers etc., the bases of these claimsare absolute rights such as real right and personal right. This...