The Tort Lawsuit Of Intellectual Property Legal Compensation Problem Research

As cases about the infringements of intellectual property rights belong to tort in China, judges followed the priciples of investigation consisted of the tracking of the right source, illegal behavior, damage, causal relationship before making dicisions. Although China's trademark law, copyright law and the relevant judicial interpretations have made many detailed provisions of types of infringements, liability of infringements is still not clearly defined.The judicial practice only can refer to《The general principles of the civil law》and《Tort law》to order the infringer to stop illegal behaviors, make an apology and pay the compensation for losses. In addition, on the issues about the compensation standard, the infringers` benefitor income and infringed`s loss must be considered when determine the amount of the compensation.But if the actual loss of the right owner or illegal income is unable or difficult to identify, 500000 yuan in compensation would be granted by the court according to the situations of the act of infringement. From the above law, the amount of compensation mainly has the following three criteria: the first, the actual loss of the owner for the right; secondly, illegal income; third, within the scope of the statutory compensation criterion about 500000 yuan. In the judicial practice, as the owner( including the trademark owner and copyright owners) should consider the cost of the burden of proof and period and other factors, they will often ask the judge to determine the amount within 500000yuan by his discretionary. Although it is suitable according to the principle of fairness, it must be done by honest, and should be controlled strictly.However, either the infringed or the infringer are concerned about the interests of the game as well as the pursuit of the maxium interests.The owners constantly complained about the hardships and advocated the complete punitive payments, though the alleged infringer accused the purposes of infringed is to obtain huge profits. As the law does not have a specific provision about the legal compensation standards, judges are in the dilemma when determine the amount of infringement on insufficient evidences on the loss of the infringement. The judge is worry about the results would be amended easily by the superior court, and that the results would be failed to get social recognition and cause new contradiction. Determination of the compensation amount not only concerns the rights of property interests, also plays an important role as the correction of infringement, to guide and standardize business behaviors.So this article put forward the following important points to solve the problem on the amount determination :First,the only malicious tort should be condemned; but vigilant business model for protection of intellectual property rights should not deviate the purpose of law.Secondly,in the statutory compensation issues, should be strictly in accordance with the basic principle and evidence,and fully considered the imbalance in China's economic development and a variety of economic organization forms features, fulfill the purpose of the combination of punishment and education, actively pursue social and legal effects of harmony.Third,higher people's courts shall formulate a set of guidance on the standard of compensation of infringements to establish a unified judicial authority according to the different types of tort liability based on the economic development in the region characteristic.