Theoretical Research On The Subjective Elements Of Punitive Damages For Intellectual Property Rights

Article 1185 of the civil code promulgated in 2020 stipulates that "if the intellectual property rights of others are intentionally infringed,if the circumstances are serious,the infringed person has the right to request corresponding punitive damages".The promulgation of this article marks a new chapter of punitive damages in the field of intellectual property rights.However,the punitive damages system originated from the common law system,which was deeply influenced by the philosophy of pragmatism,while pragmatism philosophy mainly focused on the social effect of the system without being constrained by the existing concepts and principles.Therefore,for the civil law system based on strict concept system,the introduction of punitive civil compensation is no less than putting a "heavy bullet" into the calm lake.But because of the social practical effect of punitive damages,civil law countries gradually absorb and accept the punitive compensation system in the legislation.The legal circles have gradually changed the research ideas from "whether to introduce" to "how to apply".Especially the research on its subjective elements is the most important and the most difficult point in the study of the applicable elements of punitive damages.At present,the disputes of the academic circles on the subjective elements of punitive damages of intellectual property mainly focus on: first,the subjective elements are not unified;secondly,the interpretation of subjective elements;thirdly,the presumption of subjective elements.In order to solve the above three problems,this paper will be divided into three parts.The first part is the summary of subjective elements of punitive damages for intellectual property.This part mainly summarizes the research context of scholars on the subjective elements of intellectual property punitive damages in recent years,and elaborates the ideas and views of different scholars on the subjective elements of intellectual property punitive damages.This provides a solid foundation for the later paper.The second part is the rationality analysis of "intentional" as the only subjective element.After the first part of the paper lists the ideas of scholars in recent years,this part will respond to the previous theories one by one,and gradually demonstrate the reasons why "gross negligence" and "malicious" can not be the subjective elements of intellectual property punitive damages,and the principle that "intentional" is the only subjective element of intellectual property punitive damages.The third part is the dogmatism research of "intentional" in the punitive compensation of intellectual property.Because punitive damages have the nature of private law enforcement,compared with the general civil liability,punitive damages should be more inclined to the criminal law system.The interpretation of "intentional" under the punitive compensation system should be based on the "intention" in the civil law system and the "intention" in the criminal law system.This paper holds that the "intentional" in punitive damages for intellectual property rights should be understood as that the infringer knows the ownership of the intellectual property rights it infringes,and infringes the intellectual property rights of others for the purpose of operating or gaining the market competitive advantage.For the research of the reference factors of "intentional" in the punitive damages of intellectual property,this paper will make a detailed and interpretation on the basis of interpretation based on the reference factors of "intentional" in the criminal law and civil law of China,the punitive damages reference factors in the law of consumer rights protection,the judicial judgment in recent years and the corresponding provisions issued in various regions in recent years.This paper holds that:(1)Article 3 of the interpretation shall be added: "if the infringer implements the following circumstances for the purpose of operation or for the purpose of gaining market competitive advantage,the people’s court may preliminarily determine that the defendant has the intention to infringe intellectual property rights"(2)The amendment of Article 3,paragraph 1 of the interpretation,"where the defendant continues to carry out the infringement after the plaintiff or the interested party has notified or warned",is amended to read: "if the plaintiff or the interested party sends the defendant a notice of infringement or a warning,and the notice and warning contain the basic power certificate,the defendant is still informed to continue to carry out the infringement"(3)Delete the words "and have been in contact with the infringed intellectual property rights" in Articles 3,2 and 3 of the interpretation(4)Article 4,paragraph 1(serious circumstances)of the interpretation may be changed from "the same or similar infringement to Article 3 of the interpretation(the"intention ")after the administrative penalty or the court decision is liable for the infringement.And changed to "infringer has infringed intellectual property right after being punished,infringes the same intellectual property again"(5)It is suggested that the "defendant has committed piracy or counterfeit registered trademark" in Article 3,paragraph 5 of the interpretation,to "embezzle or counterfeit famous registered trademark"...