Study On Identifying Subjective Intention Of Punitive Damages Under The System Of Intellectual Property Rights

It has been two hundred years since the born of punitive damages in the Great Britain.There has been a lot of doubts and criticism in the historial development of this system.Punitive damages have gradually impacted the legislative and judicial system of intellectualproperty in continential law countries where punitive damages should not have been accepted.They also brought great influences to the principle of damage compensation and theapplication of the presumption of fault liability which are followed by traditional civila lawtheory. They received lasting attention and discussions in the domestic and internationaltheory and practice circle. This article is based on the background that the three intellectualproperty law amendment drafts in our country regulate the application of punitive damagesand fault requirements. The starting point of this article is “subjective intention cognizance”.Combined with the domestic and international theory and practice, this article explores thesystem of punitive damages in the field of intellectual property so as to reach a constuctivesuggestion to the design and judicial application of the punitive damage system in theintellectual property filed of our coutry. This article also aims to respond to the legislative andjudicial requiremnts of punitive damage system in society.The paper is divided into four chapters.The first chapter gives an outline introduction of punitive damages of China’s intellectualproperty rights infringement in practice. China makes a try of punitive damages system fromlegislative and judicial levels development respectively, which has its history anddevelopment. First we have existing legislation "consumer protection law","tort liability act"and “certain provisions on the trial of patent disputes” by Supreme People’s Court which haveregulations and explanations of punitive damages. Then it will state and consider in twoaspects legislation and legal practice of punitive damages and it will give a summary of thepresent situation. At last it will point to the necessity to introduce punitive damages in China’sintellectual property infringement cases.The second chapter focuses on the discussion of legislative theory and judicial practiceof subjective intention cognizance in intellectual property infringement. First, make ananalysis of the theoretical basis of subjective intention cognizance in intellectual property infringement. Then state the introduction of foreign legislative theory and judicial practice onpunitive damages from the perspective of comparative methods. At last, come back to ourjudicial practice and advocate our country to make an effort to construct a system of punitivedamages in conformity with our national conditions and the subjective elements in the field ofintellectual property.The third chapter is devoted to the general construction subjective intention of punitivedamages in intellectual property infringement. Under the premise of application principles oflegal principle, proportion principle and avoid double punishment principle in punitivedamages of intellectual property infringement, based on the subjective intention amended inthe three China’s intellectual property law, and taking present market economy intoconsideration, such as the objective forms of subjective intention in the repeated infringement,imitation and tort of intellectual property infringement, this paper tries to put forwardscientific legislative suggestions for China’s "patent law" and the "implementation rules"amendment.The fourth chapter is the conclusion part. Restate to regulate patent infringementdamages and subjective intention elements, which is not only to provide for the courts trialeffective solutions but also directly promotes the judicial protection of intellectual propertyrights level.