Discuss The Use Of The Principle Of Proportionality To The Infringement Damage Compensation Of Intellectual Property

As the Principle of Proportionality has a great function and role in the public law field and vividly called “the emperor clause”,as “King clause” principle of good faith plays a role as the basic principles in the Private Law? In recent years, the principle of proportionality constantly being introduced into private areas such as contract law?civil law and so on,in the Anti-Unfair Competition Law?WTO law has also been applied?Introduce the principle of proportionality to the field of the Infringement Damage Compensation of Intellectual property has its necessity and significance?In addition to the introduction,this thesis is divided into four parts:The first part describes the necessity of introduce the principle of proportionality to the Infringement Damage Compensation of Intellectual property?The academic circles think the principle of proportionality is interpreted as three sub-items,appropriate principle?principle of necessity and narrow sense proportional principle ? The principle of proportionality through its three sub-items, in admit public power intervention in the private rights rationality premise,this intervention must be necessary and minimal,requirements between means and aim proportionately,and strive to between public power and private rights is rational and delicate balance?It is because of this idea of the principle of proportionality has been reflected in civil law, contract law and unfair competition law?WTO law?Damages for infringement of intellectual property rights is facing many problems at this stage, one is unable to follow laws and regulations are incomplete, the other is the reality of the plight of tort damages,the principle of proportionality has its balance of interests, minimally invasive, the aim justifies and such coordination functions, which was introduced to intellectual property can promote the further improvement of the laws and regulations of intellectual property,the determination of the amount of compensation for the infringement of the intellectual property rights,the reasonable distribution of the burden of proof,balance the interests of all parties are of great significance,also can protect the rights of the righter,punish the infringer violations, the public interest to maintain and promote social innovation, cultural development all have an important role?The second part shows the use of principle of proportionality in the identification of intellectual property infringement damages?First, citing the case called “Qiong Yao v. Yu Zheng copyright infringement” to discuss the current Intellectual Property Infringement Liability of identification, combined with several intellectual property issues introduced the making use of this principle; And then analyzes the principle of proportionality in determining whether to constitute a violation of the nature of the use of intellectual property rights; Finally, the analysis framework of the principle of proportionality reconstruct Intellectual property infringement liability for damages,to deal with certain cases of a new path?The third part analyzes the application of principle of proportionality in determining the amount of damages for infringement of intellectual property rights?All legal provisions have a reason,“the loss suffered because of the infringement”,“the interests of the infringer has earned etc”,associated with each other between both latent containing the principle of proportionality. The principle of proportionality in determining the coordination with the burden of proof of intellectual property infringement damages compensation as well as coordination the other damages rules are also discussed in this part?The fourth part focuses on the shortcomings and limitations of the principle of proportionality and deficiencies that may exist in judicial practice, and I think there exists something that we can improve, and I hope these measures can provide us a thinking idea?...