Research On Punitive Damages System Of Intellectual Property From The Perspective Of Law And Economics

In the field of intellectual property law,the low cost of infringement and the high cost of safeguarding rights are the difficulties and pain points for a long time.In order to improve this dilemma,The Civil Code and intellectual property law have constructed the punitive damages system.However,on the theoretical level,the construction of the system may cause externalities that hinder innovation;on the practical level,the system is rarely applied in the trial.Therefore,with the help of economic analysis,this paper improves the compensation for damages and curbs the infringement by reducing the punitive nature of the system and bringing the statutory compensation into the calculation basis of the system.In addition to the introduction and conclusion,the paper consists of five parts.The first part reveals the Judicial Dilemma of intellectual property infringement damages in China.By combing the current judicial situation of intellectual property infringement damages,it is found that the damages are seriously lower than the expectation of the obligee,so as to extract the problems of "actual losses can not be filled in,infringement is difficult to deter,and punitive damages are rarely applied" in judicial practice.Therefore,it is necessary to demonstrate the rationality of the construction of punitive damages system for intellectual property rights,and at the same time to include the statutory compensation into its calculation basis in order to improve the application of the system,which is beneficial to the transformation of the low plight of damages.The second part demonstrates the rationality of the punitive damages system of intellectual property by the analysis method of law and economics.By criticizing the three negative theories of justice morality,unjust enrichment and violation of public law,this paper demonstrates that applying punitive damages is a better way to give consideration to justice and efficiency,and it is not unjust enrichment to protect rights and obtain certain benefits,and it is not necessary to stick to the distinction between public and private law to obtain justice and efficiency.At the same time,the results of economic analysis show that the construction of punitive damages system can reduce the rent-seeking expectations of infringers,improve the level of social prevention of infringement,and take into account the economic characteristics of intellectual property rights.The third part discusses the external cost of the construction of the punitive damages system of intellectual property rights and seeks the internal solution.Through the analysis of the boundary cost,it is revealed that the external cost of constructing the punitive compensation system of intellectual property rights is the legislative expectation of stimulating the breeding of commercial rights protection behavior,compressing the living space of marginal legal behavior,deviating from compensation and punishment.In order to internalize its external effect and reduce its punitive effect,it should be clear that the primary purpose of constructing punitive compensation system is to prevent infringement,and at the same time to compensate the obligee,not mainly for punishment.After that,the scope of application of punitive damages should be defined,with intention and serious circumstances as the constituent elements to avoid overcorrection.The fourth part analyzes the legislative choice of the relationship between punitive damages and statutory damages.Through the analysis of the alienation of legal compensation and its causes,this paper reveals that whether legal compensation can be included in the calculation basis of punitive compensation system will directly affect the application of punitive compensation system.Therefore,judges should be allowed to exercise their discretion,actively guide them to use the actual losses,infringement profits and reasonable multiples of license fees.At the same time,the punitive legal compensation should return to the compensatory nature.The fifth part puts forward the concrete conception of punitive damages system of intellectual property rights.First of all,the applicable rules of intention and serious circumstances should be clear.Intention should include direct intention and indirect intention.Serious circumstances should not only consider the direct loss of the obligee,but also pay attention to social loss.Secondly,the punitive compensation coefficient should be properly selected,and the pre litigation subject review system and the legal compensation hierarchical system should be constructed to prevent the abuse of the system.Finally,clarify the relationship between punitive damages and statutory damages,and bring statutory damages into the calculation basis of punitive damages system.