Study On Judicial Application Of Punitive Damages For Infringement On Intellectual Property Rights

Punitive compensation is an important part of intellectual property compensation system.The Article 1185 of the Civil Code marks that the system of punitive compensation for intellectual property rights has a comprehensive provision on tort liability.The revision of slip laws and the issue of relevant judicial interpretation indicates that punitive compensation in our country’s intellectual property field has become "systematized".This paper analyzes the achievements and problems of our intellectual property punitive compensation system and gives improvement suggestions by proposing and solving the problems.From the legal attribute of intellectual property punitive damages,it is the product of private law and public law with the nature of "private fine" which has the function of punishing the infringer and deterring other potential infringers.The traditional view is that punishment is a peculiar function of public law,so the application of punitive damages under the framework of civil law once faced criticism at the beginning of its introduction.Punitive compensation have been clearly defined as a form of civil liability in the Civil Code,so the focus of academic attention turns to the judicial application of this legal system.An initial effect is appearing since Chinese intellectual property punitive compensation system has been running till now.The number and proportion of punitive damages applied to intellectual property rights continued to rise,promoting steady progress in intellectual property protection.A certain number of cases with high compensation amount have brought a good legal and social effect;The typical cases emerging in practice provide a new idea for judicial application from the aspects of determining the base number by applying the rules of evidence nuisance and the joint application of punitive damages and statutory damages.The operation of the punitive compensation system of intellectual property rights has achieved results but also found itself in difficulties.The cross between "intentional" and "serious circumstances" causes confusion in judicial application;It is difficult to determine the base number which is the main reason for the abuse of statutory compensation.There are some problems in the three calculation methods to determine the base number stipulated by law.There is no uniform standard for determining multiples.In order to solve the dilemma of judicial application of intellectual property punitive compensation system,following aspects are worth considering : Firstly,the basic principle of "compensation first and punishment second" should be implemented.Secondly,the connotation of "intentional" should be clarified.To avoid the confusion of judicial application caused by semantic repetition,a constitutive element of "intentional and serious circumstances" should be added.Thirdly,the calculation method of compensation should be optimized from the two aspects of base and multiple respectively.In the base determination,we can introduce the "four elements" method and "marginal profit" to confirm the actual loss and the benefit of infringement and make clear the general standard of the industry can be used to confirm the multiple of intellectual property permission costs.Discretionary compensation is more objective than statutory compensation and can be used as the base of punitive compensation.In the aspect of standard to determine the multiple,the stipulation of minimum multiple should be cancelled in order to solve the puzzle of applying double punitive damages,and more specific consideration factors should be provided in combination with the particularity of different rights objects.Fourthly,the relationship between punitive damages and statutory damages should be clarified.The statutory damages should not be used as the base,otherwise it will cause repeated evaluation of the tort.However,in the case of multiple facts,punitive damages and statutory damages can be applied respectively to the part where the loss can be ascertained and the part where the loss is difficult to be ascertained.Finally,we should make full use of the rules of evidence in the judicial application of punitive damages,flexibly adopting the standard of proof and reasonably distributing the burden of proof to increase the relief to the right holder.