Intellectual Property Infringement Damages System

Damages for Infringement of Intellectual Property is an important system in Intellectual property law, as one of the main liabilities of Infringement of intellectual property, damages for Infringement is a very important issue for intellectual property rights, infringement people and judicial practice, which worth theoretically conduct in-depth studies. For the right people, the fundamental purpose of litigation is not only requesting the court finds that the acts constitute infringement, but requesting infringement people take responsibility for their actions, accessing to adequate judicial relief. Human rights in the proceedings would normally cost of litigation and the effect of such a lawsuit economic accounts, and then measure weather through tort litigation to sanctions and protection of intellectual property rights is "economical." Tort issues that infringement people concern is, what legal consequences will face if it is against. If benefits resulted from infringing is higher than responsibility for damages, it may be "apologia" for its continued implementation of infringement, in the contrary, it will stop infringement. For the judicial practice, given the balance of interests between the parties, even cases of the parties and the public, it is conducive to the realization of legal fairness and justice.In the current economic globalization, intellectual property rights become more important on a country's economic development, the current world countries in the world are constantly raise the level of protection of intellectual property rights. Both at home and abroad with the legal and judicial practice, research on Damages for Infringement of intellectual property rights is of great significance. It is from this article consideration, which is divided into four parts on the issues.The first part, from the general principle of the tort law, first of all, we discuss the general tort law theories, and then clear content of a few basic concepts and composition of elements, as the cornerstone of studing infringement of intellectual property. This section discuss from the existing concept of tort, through a comparative analysis and using the most simple semantic analysis to reveals the legal meaning of violations, semantic content of violations is that violations of the rights of others, and clearing three elements of tort, which are behavior, rights and abuses. From several definition of tort in theory, it is clear existing the confusion among constituting elements of tort, constituting elements of civil liability and constituting elements of liability. This part mainly discusses the confusion, further elaborated on the linkages and distinction among them.The second part, damage as an indispensable element of damages system, this part first expounded the meaning of damage on the law of tort. Through analysis of several definitions of damage, discussing that the connotation of damage is ever-changing with social progress and the development of the law, modern tort law in the judgement of the damage is focusing on the damage which whether existing corresponding civil rights and law benefits, and that damage on tort law should be remedial, objectivity and certainty, it should be caused by a violation of the legitimate rights and interests. At the same time, from the basic theories of tort damages system, discussing the purpose and principles of damages for infringement of intellectual property rights, and concluded the purpose of which is the only relief, but meanwhile it may have multiple functions such as punishment and prevention, and according to purpose of damages for infringement of intellectual property rights, that damages should follow the principle of full compensation, for example, the principles of the offset between profit and loss compensation is the concrete manifestation of the principle of full compensation. This section with a lot of space focuses on the principle of infringement of intellectual property rights and relationship between fault and liability for damages, then concluding that liability principle of damages for infringement of intellectual property is the fault principle of responsibility.The third part, to China's intellectual property laws and judicial practice as a basis , combining with foreign-related theories and cases, specially discussing particularity of damages for infringement of intellectual property rights, the specific details and the calculation method of amount of damages for infringement of intellectual property, profits resulted from infringing, and reasonable multiples of licensing fee, exception of damages, including others specific problems. From view of abstract and concrete labor analyzing particularity of intellectual property's value source, and leading to the difficulty of determining the amount and complexity in practice. Through analysis and comparison between domestic and international justice legislation and judicial practice, viewing that the goodwill included in the tort damages is reasonable, compensation of reasonable Attorney's fees is in line with the principle of full compensation. Damages for infringement of intellectual property rights, in theory firstly as compensation for the loss of standards, with full compensation and the actual compensation principle. Any of the other determining methods is alternative approach suffered by the victim. Through an in-depth analysis of the profits result from infringement and multiples of license fee shows that they are not against purpose of damages for infringement of intellectual property—compensation, but to better achieve the original intention. Finally, according to specific provisions of our laws on intellectual property rights, introducing some restrictions of liability applies, such as limitation of damages liability for infringing, for example, the saler of infringing products, users of copies, publishers, producers, distributors of copies, and in the network environment, limitation of liability of the online service providers.And part IV, which mainly introduces a new insurance - insurance of intellectual property designed by insurance industry of the western developed countries, including its classification and functions. It adds damages for infringement of intellectual property rights, and is the replenishment system. Spreading risk which will be able to meet the needs of socializating damages for infringement of intellectual property rights, which is able to expand ability and improve effectiveness of paying compensation, effectively avoid intellectual property can not obtain actual damages "embarrassed." It also put forward appropriate view and suggestion in the development of China's Intellectual Property insurance, expecting that it will be useful for application and development of damage for infringement of intellectual property rights.