Research On Judicial Application Of Punitive Damages System Of Intellectual Property

The punitive compensation system originated from the United Kingdom,was widely developed and applied in the United States,and was gradually learned from the civil law field in some countries.It is a civil compensation system to realize the function of punishment.The function of punishment is the function of criminal law.The introduction of civil field can combat infringement,stimulate the right holder to protect their rights,and reduce the national administrative cost.Although punitive compensation bears various functions such as punishment,containment and deterrence,its essence is still a civil compensation system.In the face of the serious phenomenon of intentional and repeated infringement of intellectual property rights in China,China’s Civil Code and relevant laws in the field of intellectual property rights have basically established the rules of the punitive compensation system for intellectual property rights.Through summarizing the existing judicial cases,it is found that the punitive compensation system is difficult to be truly implemented injudicial practice.First,the compensation base is difficult to calculate,and the applicable proportion of legal compensation injudicial cases is too high.Second,the subjective and objective application requirements are not clear.Third,the factors that determine the penalty multiple are disorderly,lack of hierarchy and standards.First,Intellectual property rights are intangible property rights,and the amount of compensation is not easy to calculate.When it cannot be accurately calculated by the conventional difference calculation method,the legal compensation shall not be directly applied,but shall be estimated according to the evidence according to the comprehensive market factors.Second,unified intention is subjective applicable elements,indirect intentional investigation of understanding factors,directly and deliberately contains the will factors,similar to malice.Third,consider the subjective and objective identification factors respectively,first prove the subjective mentality of the infringer,and then identify the circumstances are serious.Fourth,The multiple determination element is actually the subjective and objective requirements two consideration,the subjective and objective elements one and two sides,can introduce malicious from the subjective differentiation multiple interval,and then with indirect intentional or direct intentional as the basis interval according to different objective plots refinement.By clarifying the base calculation method,improve the calculation rules of compensatory compensation,unify the subjective and objective requirements,gradually identify the compensation multiple by classification and classification,and establish the multiple interval index system,so as to solve the problem of low applicability rate of punitive compensation in real cases.