知识产权间接侵权连带赔偿责任的反思与重构

Reflection and Reconstruction of Joint Liability for Indirect Infringement of Intellectual Property Rights

按照共同侵权的基本原理,作为教唆、帮助侵权人的知识产权间接侵权人需要与直接侵权人承担连带赔偿责任。然而,由于现代知识产权间接侵权案件适用场域的特殊性,连带责任的适用面临着直接侵权难以确定和追偿机制失灵的技术难题,这些难题造成了利益失衡的问题。为了克服上述问题,比较法上出现了适当限制知识产权间接侵权中连带责任适用,利用知识产权法中特有的损害赔偿计算方法直接从间接侵权的角度计算损失的倾向。为此,需要在特定类型的知识产权间接侵权案件中对连带责任的适用设置例外,借鉴比较法上的经验,探索利用知识产权损害赔偿特殊计算方法限制连带责任的路径。

According to the basic principle of joint tort,the indirect infringer of intellectual property should be held jointly and severally liable together with the direct infringers. However,due to the particular field of modern indirect infringement of intellectual property cases,joint and several liability encounters issues such as the difficulty in affirming the direct infringements as well as the malfunctioning of the apportionment magnesium of damage accounts between the direct and indirect infringers. To deal with those issues,there is a trend in the comparative law of restricting the application of joint and several liability in indirect infringement of intellectual property,that is calculating damaged independently by using the special rules in the damage calculation in the intellectual property law. It is suggested that exemptions of joint and several liability should be built in the specific kinds of indirect infringement of intellectual property cases,by learning from the comparative law experiences,and the investigate the methods of restricting the application of joint and several liability in indirect infringement of intellectual property by using the special rules in the damage calculation in the intellectual property law in the legal practices.