The Presumption Rule In The Disputes Of Copyright Infringement

In infringement of copyright dispute cases,the judge often identify the relevant facts by using presumption rules.In judicial practice,however,in the same circumstances but come to a completely different conclusion,this often due to whether the presumption rules are applied.For example,in the case of CAVCA v.HJC,because of the second instance court apply the presumption rules improperly,the first-instance judgment was reversed.In the retrial procedure,the Supreme Court ruled that presumption rules shall apply to correct the adjudication of second instance,so the higher court in Yunnan Province was specified for judging one more time.This paper attempts to take the case as an example,to analyzes the copyright infringement dispute cases should be how to apply the presumption rules.The article consists of five parts,and has more than thirty thousand words.The first part mainly about the CAVCA v.HJC case,which is a brief introduction to the basic situation of the case.And this part analyzes the basic ideas of the first instance,the second instance and the referee further.In the second part,at the first,presents the common points of this kind of copyright infringement dispute cases,then summarizes,collates and analyzes the present situation of judicial referees this kind of cases in different areas in recent years.The method that depend on the facts and data can make the paper have a broaden horizon,and look to the general trend of this kind of cases in the aspect of judicial judgment.This method can not only give the practical guide to the theoretical issues studied in this paper,but also make some necessary studies on the theory against the practical problem.The judicial idea of presumption rules to use in the music television works copyright infringement disputes is the theme of the third part.This part discusses from the judicial idea of “fact-based,law-based” and “strict intellectual property protection”.And in the second judicial idea also analyzes the causes of this idea.The fourth part,the author expected to discuss the presumption rules further from the theoretical level on the basis of the above three parts,for support the way of confirm evidences and facts,which is common used in the practice.To expand the law certification of the presumption,find the theoretical basis and provide strong support for the use of presumption rules in practice,this part is mainly about the nature of thepresumption rules,the logical structure,the legal effect and so on.The nature of the rules is based on the reference,which from the view of scholars both at home and abroad,and add the author's own thinking,so the author believe that,presumption is a way that from the basic known fact to the unknown.The real presumption should not be limited by the language of legal norms and rules,but combine with the logic structure to identify and apply exactly.In terms of the classification of presumption rules,the author still agree with the main view all along,which divide the presumption into legal presumption and factual presumption,and on this basis add the logic presumption.According to China's laws and regulation,the author thinks that the presumption rules in our country regardless of the type belongs to,it is should be allowed to argue.Only in this way,can guarantee the equal legal status of both parties in civil litigation,and also help the fair value that the procedures and results of trial come true.About logical structure,the author summed up four levels.First,the fact which need to rely on the presumption must be free of evidence to prove.Second,a basic fact must exist and it must have a normal relation with the presumption fact.Third,the basic facts must be reviewed and confirmed in court that can introduce the fact to be proved.Fourth,the presumed result from the basic facts allows the presumed adverse party to give a effective different contradiction.In addition,it also discusses the legal effect by using the presumption rules,and in the end,the author thinks that the “legal effect that transfer the burden of giving a proof” is more able to suit the logic of using presumption rules.The last part discusses from the discretion of the judge and the inner convinced,and further talk about the rationality of the rules and the availability of the presumed fact by using it.Under the premise of affirming the application of the presumption rules,then it discusses the importance and necessity of applying the presumption rules in the music television works,and can also be regarded as a summary of the whole article.