On The Amount Of Discretionary Damages

In Damages Law,determining the amount of compensation is an important theoretical issue and it is the ultimate goal of damages law. Generally, there are three criterions determining the damages:actual loss which the plaintiff suffers, profit which the defendant acquires, and discretionary damages which is determined by judge. With the advent of knowledge economy, there are more and more tort cases about the intellectual property infringement in the economic field. In such cases, especially in unfair competition cases which related to intellectual property infringement, the loss is intangible and abstract, the traditional methods based on the loss or the profit are no longer able to fully meet the needs of such trials. However,discretionary damages, because of its flexibility, has gradually attracted much greater attention from theory and practice. However, the discretion of damages is the use of judge's free discretion, and the process is full of subjectivity and uncertainty. It asks the judge to have a high professional quality and ethics, otherwise it will lead to the rights abuse and judicial corruption. The core of discretion damages is to determine the amount of damages, so the study of discretionary damages is significant. This article is a very study of the discretion on the amount of damages,which combines the traditional theory of damages with current cases of unfair competition and intellectual property infringement.In addition to the introduction and conclusion, the full text is divided into three parts.The first part explains the origin of discretionary damages from two aspects:the causes of discretionary damages and its development in China. The discretionary damages is to solve the problem of how to lower the certainty standard of proof on loss. In this way, the victim can be compensated even if he can not prove the exact amount of loss. And the discretionary damages has gone through three periods in China. It first appeared in the personal injury compensation area, developed in intellectual property law, in-depth developed in the Anti-Unfair Competition Law.The second part talks over the application of discretionary damages. Firstly, this part discusses the factual basis which the discretion damages should be based on, that is, the judge should determine the amount of compensation based on the loss or the profits. Secondly, the article reviews the current laws providing for discretionary compensation, and classifies the mentioned factors which should be take into account during the discretion of the compensation. Then, this part chooses sixty cases in the use of the discretionary damages of unfair competition infringement cases on the practice, and sorts out some factors which used by the court during the discretion of the compensation. After that, this part compares the factors mentioned in the law and the factors used by the judges in the trial, then ultimately determines what factors can affect the discretion of the damages. Finally, it discusses the applications of each factors identified above specifically and detailedly.The last part is concerned with the restriction of discretion damages by special law-statutory damages. The most direct restrictions of the discretion damages are from the law. In China, the intellectual property laws have set limits, which calls statutory damages. The statutory damages should be strict compliance with when the judge applys discretion damages in the field of intellectual property. The application of statutory damages includes three major limitations, that is, the amount, the order and the benchmark.Although this paper has some personal opinions, the research of this issue is still at an initial stage,and there is still a long way to go.