Analyze The Criterion Of Liability In Intellectual Property Torts

It is necessary to find the legal foundations of claims correctly during analyzing the criterion of liability in intellectual property torts, with the method of "legal foundations of claims" (anspruchsgrundlage) used. It is also necessary to distinguish between claims of absolute right and claims of obligatory right before the legal foundations of claims are confirmed. This thesis regards the system of claims as the point of penetration, analyzes the quality of the right of intellectual claims, and restores the concept of "criterion of liability", which is important in tort law, to its original meaning, thus establishes the prerequisite for full text. Then the thesis focuses on the current laws, arranges the legal foundations of claims which owned by intellectual property holders in the legal relationship of tort, and ascertains the criterion of liability in intellectual property torts according to the legal foundations of claims at last.In China, two kinds of claims are involved in intellectual claims. One kind of them is claims of absolute right, which are on the basis of absoluteness. The other one is claims of obligatory right, which are on the basis of compensation for damages. Criterion of liability, which is a concept bases on claims of obligatory right, has no relation to claims of absolute right due to it is an abstraction of attributable facts which are the reasons why damages can be transferred from the victim of a tort to the tortfeasor.The legal foundations of claims owned by intellectual property holders can also be divided into two parts:claims of absolute right, including Article 21 and the first part of Subparagraph 2 of Article 36 of Tort Law of the People's Republic of China, Subparagraph 1 of Article 66 of Patent Law of the People's Republic of China, Article 65 of Trademark Law of the People's Republic of China, Article 50 of Copyright Law of the People's Republic of China; claims of obligatory right, including Subparagraph 1 of Article 6, the last part of Subparagraph 2 of Article 36 and Subparagraph 3 of Article 36 of Tort Law of the People's Republic of China. These two kinds of legal foundations of claims constitute the remedy system of intellectual property without any confliction.It is clear that the criterion of liability in intellectual property torts ought to be principle of liability for fault according to the legal foundations of claims of obligatory right owned by intellectual property holders. It is decided by the meaning of "claims of absolute right" and "criterion of liability" that the criterion of liability in intellectual property torts cannot be principle of liability without fault.