The Considerations In The Application Of Statutory Compensation

In view of the current judicial practice,statutory compensation is generally applicable and have some problems.For example,the degrees of compensate explanation are different and the "same case" have different judgments.These problems are related to the way of judge’s thinking.The determination of the statutory compensation by judge is mainly within the combination of considerations and the scope of compensation in different types of cases.Therefore,this article based on the empirical analysis,extracts the considerations from the part of statutory compensation judgments of the Court to analysis.These considerations Includes the the laws and regulations have not be clearly defined and some provisions that are not expressly provided but in general judicial practice often have a significant impact on the determination of compensation.Of the above research,the author puts forward the existing problems in the application of statutory compensation and considerations,and provides some suggestions on the specific problems,so as to solve the main problems in the judicial practice.In terms of the determination of specific considerations,the current law of statutory compensation for the provisions and the principle is too broad and lack of a detailed standard.This reflectes that although sometimes the judgment is reasonable,but it beyond the scope of the existing legislative considerations.Then,since the provisions of the legislation is not comprehensive,there is no specific provision for which considerations are necessary to consider and which ones can be considered,which may lead to the consideration in specific cases goes missing.In order to solve this problem,the considerations of statutory compensation in various intellectual property cases can be classified by the research,and further the scopge of the considerations in legislation.So as to make the considerations to be statutory.In terms of the judgment reasoning about considerations,there are some problems like "formatting enumeration" and not combine with the case to analysis.On one hand,it may be caused by the judges’ various personal reasoning ability.On the other hand,it may also be the result that although specific considerations are took into consideration,some facts are not identified.Therefore,in the specific application,the judge should identify the relevant facts of the considerations,rather than just "set format" to a general list,especially explain the easily determined considerations separately,such as reasonable costs.Besides,judge should combine the specific considerations of the case to clarify a detailed reason,so as to make which considerations ’s corresponding weight explicitly.Specifically,since the trial report in the court vice roll have a more detailed reason to determine the compensate,which can reflect teh calculation method of the considerations and weights.Author proposed that the judgment should public the process of determine the compensation,which not only recording the procession of the case,but also to clarify the specific compensate in detail.At present,the statutory compensation is determined by comprehensive considerations.However,due to the lack of relevant provisions of considerations’ affects in specific cases,the judge is likely to focus on different individual considerations.Therefore,the impact of the considerations in the specific case should be clarified.Which can be made as far as detailed in the applicable order,measurement proportion,and regional differences,and have a refinement and even the quantification of the provisions.The specific setting is similar to the sentencing system.When the scope of the compensation is determined by the type of intellectual property right,it can be calculated according to different case types to the statutory maximum penalty setting of the criminal law,and then the calculation of the specific compensation based on the clear considerations.Furthermore,determine the compensation based on the specific circumstances of the infringement,rather than unified in the large interval.And then determine the compensation in combination with each considerations.Among these,the general considerations of statutory compensation is similar to the statutory considerations in the sentencing system,and the special consideration is similar to the discretionary factors.And after the statutory considerations and the discretionary considerations of the intellectual property cases are determined,the role of the statutory considerations in the cases of specific rights should be clarified.In addition,the considerations of region is need to be taken into account when determining the baseline for each consideration.Through the analysis of the above considerations and the summary of the suggestions,we can see that the improvement of the considerations has a positive effect on the judicial practice.The "same case" have different judgments may mix many other considerations,such as region and etc.Which intuitively expresses the judge’s different attentions for the different considerations,it also means there is a lack of specific provisions on the considerations of the impact on compensation.And the problem that judges have different degrees of reasoning is the result that considerations have mechanization enumeration phenomenon and that issue is sometimes clarify not combined with the specific circumstances of the case.Furthermore,if the considerations are specifically defined in the form of legislation,identifying the facts and tell the reason of judgments in detail,and determine the impacts of the considerations on compensation.So as to improve the problem of statutory compensation in current high proportion.