Confirmation Of Subjective Intentions In Punitive Compensation For Intellectual Property Rights

The administrative power of modern government is expanding day by day.How to control the discretionary power of administrative organs has become a modern practice.at the core of the study of politics and law,the efforts of the legislature,the judiciary and the administrative organs to control their power have never ceased.The benchmark of administrative discretion is precisely for the purpose of self-restraint,giving full play to its creativity,flexibility and compliance administrative rules designed to limit discretionary space are formulated along the path of rule-based approach.The benchmark of administrative discretion is administration,the concretization of the scope and scope of discretion in legal norms can effectively restrict the excessively broad lines reserved by legislation governmental discretion,so as to achieve the justice of discretion.On this basis,it discusses the subject of setting administrative discretion benchmark and the establishment of its authority,as well as the administrative organs The basis,origin and control technology for the establishment of administrative discretion benchmarks are proposed to be related to the existing theories at home and abroad,on the basis of a comprehensive analysis,this paper attempts to re-map innovative research.This paper is divided into five parts.The first part of the article begins with the legal status quo of subjective intent determination of intellectual property punitive damages.It is divided into two parts.First,it elaborates the legislative status quo of subjective intent in intellectual property punitive damages.After that,through the analysis of legal practice and case study,it is found that the "malicious infringement" and "serious circumstances" expressed in the existing legal provisions are suspected of having unclear concepts and standards,which need to be defined in the context of intellectual property law.The second part of the article makes an analysis of the determination of the status of the intellectual property punitive damages supervisor.From "intentional" and "gross negligence","intentional" and "malicious","malicious" and "serious circumstances",it is concluded that gross negligence should not be excluded from the applicable conditions of punitive damages,and that "malicious" and "serious circumstances" do coincide in the determination.Finally,the rationality of "malicious" provisions in the Trademark Law is discussed.The third part of the article assigns the burden of proof to the subjective intentional determination of punitive damages for intellectual property infringement.Because the characteristics of intellectual property determine the feasibility of inversion of burden of proof.In addition,this paper points out that the subjective motive of the infringed to avoid infringement,the malicious lawsuit of the infringed,and doubts about the legality of the infringement warning letter can constitute the defense of subjective intentional determination.The fourth part of the article puts forward relevant suggestions on the improvement of subjective intent determination of punitive damages for intellectual property rights in China.Firstly,this paper discusses the design of subjective intent in the three major intellectual property law amendments;secondly,the objective manifestations of subjective intent are re-excavated to refine it and expand the scope of application of punitive damages for intellectual property rights;finally,some suggestions are put forward for the draft amendment of legislative provisions.The fifth part is the conclusion.The aim of restating the punitive damages system of intellectual property is to achieve strict protection of intellectual property rights and effectively stop the abuse of intellectual property rights.As the premise of full application of the system,the improvement of subjective intent identification has profound practical significance.The discussion of punitive damages for intellectual property rights is the driving force of the judicial process in China.