Research On The Order Of Application Of Statutory Compensation For Intellectual Property Rights

Statutory compensation is one of the ways to determine the amount of damages.The current law stipulates that the application of statutory compensation should be restricted by order.However,relevant judicial interpretations and recent draft laws have made attempts to apply statutory compensation without being subject to order restrictions.Statutory compensation is a tool for coordinating the conflict between the non-material nature of intellectual property rights and the "judge shall not refuse to judge" in the civil field,and to achieve the objective need of substantive justice in the field of intellectual property infringement.In judicial practice,the statutory compensation,which is the last one,has become the main way to determine the amount of damages.Understand the provisions of the law as it gives right holders the right to choose freely,and realize that in judicial cases,most right holders directly choose statutory compensation as the way to determine damages.More importantly,it has the efficiency of judicial relief,because the amount of compensation determined by the application of statutory compensation evidence does not reach the actual loss of the right holder,and the infringer's illegal gains have very strict requirements on relevant evidence.These have become the substantive supporting reasons why the application of statutory compensation should not be restricted by order.However,statutory compensation insists on order restriction is an inevitable requirement of the principle of comprehensive compensation in the field of civil damage compensation.First of all,under the background of the era when the development of new technology has impacted the balance mechanism of intellectual property construction,the meaning of the principle of comprehensive compensation should also shift from protecting the loss of the right holder to being fully compensated to ensuring the freedom of behavior of the counterparty.Secondly,as far as judicial efficiency is concerned,the object of investigation cannot be separated from China's judicial system.The current procedural law determines the "second-instance final instance system." The excessive use of discretionary power and the dishonest exercise of rights in the current operation of the intellectual property system have a profound relationship with statutory compensation itself,and restraint in the application of statutory compensation is the proper meaning of judicial activism.Therefore,statutory compensation should be carefully applied to determine damages.With the emphasis on strengthening the protection of intellectual property rights under the actual national conditions,various intellectual property laws have introduced or are introducing punitive compensation systems.Adhering to the application of the order of legal compensation can maximize the deterrence function of the damage compensation system within the legal limits.Whether it is based on the intended meaning of comprehensive compensation,from the perspective of judicial efficiency,or from a functionalist standpoint,the intellectual property system should adhere to the order of statutory compensation.