知识产权法定赔偿的初始风险

The Initial Risks of Statutory Compensation of Intellectual Property

虽然我国法定赔偿的规定颇为严格,但在适用中却出现了立法与司法的严重脱节。究其深层原因,至少是因为自该制度创制伊始,就内含诸多较难克服的制度风险,集中表现在过于依赖法官的酌情推定,对法官的权力制衡有可能走向失衡,制度宗旨能否实现仍有待研判等方面。为克服法定赔偿的初始风险,可选择如下制度调整思路,即在目标上,应继续坚守民事赔偿的全部赔偿原则,在手段上,应采纳回归当事人证明模式,推进法定赔偿的社会化,以及重新理解法官的角色等措施。

Although China＇s legal provision of statutory compensation is quite strict, it has, in the application, appeared the serious disconnect between legislation and judicature. The in-depth reason is, at least, that because the statutory compensation, from the beginning, contains a lot of institutional risks difficult to overcome, reflected in the following facts, such as the extra reliance on the judge＇s discretion presume, the possibility of from balance to imbalance on the judge＇s power, along with the further investigation on whether to achieve the institutional aim or not, etc. To overcome the initial risks of statutory compensation, the thinking route of institutional adjustment ought to be selected as following, namely on the target, which need to adhere to the civil principle of full compensation, on the means, which need to adopt the return to the parties proof mode, to oromote the socialization of statutory comoensation, to re-understand the role of the judge and so on.