The Doctrine Of Liability Fixation Of Intellectual Property Infringements

Owing to the different viewpoints on the doctrine of liability fixation on intellectual property infringement not only in academic but in judicial practice. The General Principles of Civil Law of the People's Republic of China has made the doctrine of liability for wrongs a clear legal provision, which is regarded as the general principle of liability fixation on tort in the civil law. The codes of intellectual property of China have particularized the actions of infringement upon intellectual property, but they nearly say nothing about the problem whether these actions must be with fault or not. Because the provisions in the codes of intellectual property on such problem is not clear, the judgers'attitudes to the party's defense based on no-fault is different. The inconsistent judicial practice has injured the coherence of legal system, and more importantly, has resulted in essential unjustness and eroded the footstone of law, the justice. On account of the stress from international rules and the leading of academic mainstream, in most of judicial practice, the judgers adopted the doctrine of liability without fault. The adoption of such doctrine may hold back the development of law of intellectual property. According to the established doctrine of liability fixation, fault is always the basic standard. The fault and its demonstration are very uncertain. There are different views about it, which included the theory of subjectivity and the theory of objectivity. The illegality is connecting with the examination of fault very closely in intellectual property infringement, however, we should make it a very special problem. In intellectual property infringement, the liability with fault and the liability without fault are not incompatible with each other. The doctrine of liability fixation is only reflecting the purchasing certain basic values. The choice between the doctrine of liability with fault and the doctrine of liability without fault essentially is a activity of valuation. There are many bases on which the legal system can make its value choice, but the most fundamental value purchased by law is justice. The liability with fault is justice.