CAJ | 학술논문

主流学说认为，知识产权请求权是类物权请求权，侵权即应适用停止侵害。这种类推是知识产权物权化的表现，容易使知识产权保护过强而不符合社会经济生活。本质上，知识产权停止侵害请求权是知识产权侵权之债的内容。知识产权侵权行为可造就独特的事实状态，不仅牵涉知识产权人和侵权行为人的利益，而且可能卷入第三人利益和公共利益。法院应基于侵权的具体情况，综合考虑原被告对侵权发生的过错，平衡各方利益，公平地确定知识产权侵权之债的具体履行方式，采用灵活的措施修复侵权损害的社会关系，不应机械地判处侵权人停止侵害。在知识产权法无相反规定的情况下，我国法院应类推适用民法有关债之履行的一般法律规范，在特殊情况下不判处知识产权侵权行为人停止侵害，改为责令其赔偿权利人损失和采取适当的补救措施来实现充分救济。
주류학설인위，지식산권청구권시류물권청구권，침권즉응괄용정지침해。저충유추시지식산권물권화적표현，용역사지식산권보호과강이불부합사회경제생활。본질상，지식산권정지침해청구권시지식산권침권지채적내용。지식산권침권행위가조취독특적사실상태，불부견섭지식산권인화침권행위인적이익，이차가능권입제삼인이익화공공이익。법원응기우침권적구체정황，종합고필원피고대침권발생적과착，평형각방이익，공평지학정지식산권침권지채적구체리행방식，채용령활적조시수복침권손해적사회관계，불응궤계지판처침권인정지침해。재지식산권법무상반규정적정황하，아국법원응유추괄용민법유관채지리행적일반법률규범，재특수정황하불판처지식산권침권행위인정지침해，개위책령기배상권리인손실화채취괄당적보구조시래실현충분구제。
Conventionally, intellectual property rights （IPR） are regarded as “property” and injunctive relief is required as automatical when infringement occurs, just like trespass upon property. This approach, however, would make intellectual property rights disproportionally strong and remedies improperly rigid. While intellectual property rights are absolute and can be asserted against anyone in the world, infringement does not happen in this highly generalized way. Rather, IPR infringement involves the interests of the IPR holder, the infringer, third parties and the public. When formulating remedies for IPR infringement, it is not always a good idea to permit injunctive relief regardless of the interests other than those of the IPR holder. In fact, injunctive relief is not the only and sole remedy for trespass upon real property. It should be noted that the creation of a right is distinct from the provision of remedies for violations of that right. When considering injunctive relief, courts should weigh all material interests with a view to remedying the legal order harmed by the infringement. Where courts lose sight of the big picture and allow permanent injunctions mechanically, IPR enforcement runs the risk of unmooring from the genius of IPR laws. The denial of injunctive relief, unlike compulsory licensing, statutory licensing and exceptions to IPRs, is not equal to confining the IPR involved. This relief should be denied where the enforcement would cause the infringer or the public to suffer harm disproportional to possible benefits to the right holder. In those cases, pecuniary damages along with corrective measures can be sufficient to remedy the IPR infringed. In this event, the interests of the IPR involved is not confined but fully recognized. Only the way to make it whole again is changed, not through injunctive relief, but through creative measures. Under the Chinese legal system, IPRs are not subsumed to the property paradigm. Statutorily speaking, courts are not required to allow injunctive relief when copyright, patent or trademark is infringed. Article 118 of the General Principles of Civil Law of P. R. China explicitly provides that the right holders “may” ask for injunctive relief. The Chinese Copyright Law, Patent Law and Trademark Law do not counteract this general principle. This does not mean, however, that there are no rules of law for courts to look at in considering denial of injunctive relief. Where infringement occurs, the infringer has obligations to the IPR holder, including the obligation to desist from infringement. Injunctive relief is the IPR holder＇s right to ask the court to enforce obligations arising from IPR infringement. In denying injunctive relief, courts should look at the rules of law under the General Principles of Civil Law （GPCL）, Tort Liabilities Law （TLL） and Contract Law （CL） which apply generally to performance of obligations. Specifically, Art. 4 GPCL provides that excise of rights should be in good faith and Art. 7 GPCL forbids any excise of rights that would harm public interest or interfere with general economic order. Moreover, Art. 110 CL permits exemption from specific performance of non-pecuniary obligations under the following circumstances：（1） performance is impossible de jure or de facto ; （2） the obligation is unsuited for specific performance or tile cost of specific performance is excessive; （3） the obligee fails to request specific performance within a reasonable period of time. In practice, Chinese courts do deny injunctive relief in special IPR infringement cases. While they did not explicitly cite those legal provisions mentioned above, case studies show that their legal reasoning can be subsumed to those statutes. Furthermore, in those cases, Chinese courts awarded ongoing royalties in combination with corrective measures in order to remedy the infringed rights vigorously, following the genius of Art. 107 CL, which aims to make contract obligation whole upon breaching. Therefore, it is fair to conclude that the general rules of law applicable to performance of obligations in Chinese civil laws should serve as the principles for denying injunctive relief for IPR infringement. Where lhe relief is denied, damages and corrective measures should be awarded to ade.quately remedy the IPR infringed.