Application Of The Rule Of Obstruction Of Evidence In Compensation For Infringement Damage Of Intellectual Property Rights

"Any right without remedy is not a right",and a right should get due degree of remedy,or it isn't complete.For the right holder,the most needed is to get relief after one's intellectual property right was infringed.The most important and complicated part of the remedy for intellectual property is damages except stopping infringement.In China today,there is a serious problem to obtain the compensation for the infringement of intellectual property rights by means of litigation— statutory compensation is abused.The reason for it is,the facts that other ways based on to calculate the damages are hard to find out: there are too many factors have influence on the loss of the infringed,and the evidences of the gain of the infringer usually hold by infringer.Besides,the amounts of license fees are not creditable because of the lack of business ethics and good faith.Both theory and practice have proposed to solve the problem that the facts are difficult to find out(mainly for the benefit of the infringer)by proving the rule of obstruction of evidence.The application of the rule of obstruction of evidence,can reduce the burden of proof for the holder of intellectual property rights to some extent,and urges the infringer to take the initiative to provide evidences related to the amount of benefit,which is helpful for ascertaining the facts and avoiding the quagmire of statutory compensation.Although introduce this rule to the field of compensation for intellectual property infringement damages can alleviate the problem of excessive statutory compensation,the application rate of statutory compensation is still high according to statistics,it means that this rule is not perfect.After sort out relevant laws and regulations and combining with a large number of legal precedents,this paper concludes that there are two major problems here: the prima facie evidences have defects,and the legal consequences are not clear.The defects in the prima facie evidences include two parts: the quantity of prima facie evidences are insufficient,and the contradiction between the claim of the right holder and the evidences.The solution to solve the problem of insufficient quantity is strengthen the interpretation of the judge to the right holder,and make clear the evidences needed to provide in order to apply the rule of obstruction of evidences.Besides,in order to avoid overcorrection,in the discovery phase before the application of the rule of obstruction of evidence,the judge must give a detailed explanation to the party who is required to provide evidences,make clear their content,form and time limit,to prevent the party's right to debate is being improperly deprived.This paper holds that the legal consequences of obstruction of evidence should be divided into "law suit effect" and "punishment effect".The former will directly have a substantial impact on the lawsuit,while the latter will only punish the obstructer,and it doesn't have influence on fact-finding and the result of this lawsuit directly.Based on the expression of legal provisions,judicial policy,judicial practice,advantages and disadvantages of various means of interpretation and other factors,the law suit effect of obstruction of evidence should be interpreted as "discretion of facts",in respect of compensation for infringement of intellectual property rights,which is the operational model of the viewpoint of inner conviction.This method is strongly advocated by the supreme people's court.It is not a special form of statutory compensation,but a combination of various factors to determine the loss of the right holder or the gain of the infringer,which is a fact-finding method.Meanwhile,it solves the problem that the prima facie evidences are contradicted with the claim of the right holder.However,in practice,the discretion of facts is deviated to the statutory compensation,which is due to the wrong understanding of its nature,the opacity of its process and the irregularity of its expression.The wrong understanding of its nature,means the discretion of facts should be an auxiliary method of fact-findings,but it is mistaken as the special application mode of statutory compensation.The opacity of its process means,in a judgment,it is very similar to statutory compensation?Both of them are just setting the final amount of the award simply by listing a number of considerations,the only difference between them is that discretion of facts is not subject to the upper limit of the statutory amount.The irregularity of its expression is that,in some cases,the reasoning part of the judgment do not make clear which way the case is to determine the amount of compensation,if the amount is just within the statutory limit,it is more difficult to determine whether it is discretion of facts or legal compensation.To solve the problems all above,there are two solutions.First,the operation of discretionary compensation under different circumstances should be made clear,mainly in the case of relatively sufficient evidence and relative lack of evidence.The former can be calculated by using alternative data,while the latter can be quantified various factors in the case as far as possible to ascertaining the facts to reduce the uncertainty of inner conviction.Second,regulate the statement of discretionary compensation in judgment.