Civil Liability For Infringement Of Intellectual Property Rights Basic Research

The civil liability of infringing intellectual property, refers to some basic issues in civil law. This paper discusses three basic issues mainly: the quality and characters of intellectual property, the liability fixation of infringing intellectual property, the civil liability of infringing intellectual property. Actually, there are close connections among the three above issues and the argumentation and cognition about it go far beyond the explanation and applying of intellectual property itself. The quality of intellectual property determines in itself the quality of the civil liability of infringing intellectual property, and determining the nature of intellectual property is the basis of determining the nature of the civil liability of infringing intellectual property ; similar to this, as certain liability fixation determines the composing conditions of tort liability, the burden of bringing evidences, the conditions of excusing liability, the warrant of lightening liability, etc, to take on the civil liability of infringing intellectual property inevitably refers to liability fixation which applies to infringing intellectual property. On the other hand, the characteristics of intellectual property, especially the modern characteristics are different from that of traditional real right, which influence enormously the applying of the liability fixation in the field of property. Therefore, the above contents though seemingly three parts, are a closely connected whole, and none of them can be ignored when discussing the civil liability of infringing intellectual property. This article, from the angle of origin and system; basing on theories of real law, tort law and civil liability; combining with modern characters of intellectual property and modern features of infringing intellectual property, referring to legislations of intellectual property overseas and some regulations of TRIPS, illustrates systematically the three above basic issues. And expresses some basic opinions about the issue about the civil liabilityof infringing intellectual property under the condition that the harmony of the whole civil law system being assured, and tables the proposal at the level of legislation advices and perfecting some systems.The first part of this paper discusses about the quality, characteristics and modern features of the intellectual property. The quality of intellectual property is a kind of property right in nature from the angel of reality and the origin of intellectual property. Intellectual property undoubtedly resembles real right in nature. Among the characteristics of intellectual property, immateriality is undoubtedly the most important characteristic. Most importantly, many modern features deriving from immateriality , such as the characters of copying easily and spreading easily, have increasingly great influence on the intellectual property and the act of infringing intellectual property, which continually developed in modern knowledge societyThe second part discusses about liability fixations that apply in the field of intellectual property. On the basis of the illustration of the origin, basic condition, connotation and historical mission of kinds of liability fixation , referring to the series viewpoints of applying liability fixation of infringing intellectual property both domestic and abroad, the paper does comparative research on fault liability fixation, presumed-fault liability fixation and non-fault liability fixation, and realized that liability fixation is merely the liability fixation of tortuous compensation liability. Combined with the characters of intellectual property, the author reckons that we should, according to different circumstance, respectively use fault liability fixation and presumed-fault liability fixation for the act of infringing intellectual property; and establish a dualistic liability fixation system of fault liability fixation and presumed-fault liability fixation in the field of intellectual property in our country.The third part illustrates sys...