Summary of the focus of disputes in infringement disputes

The focus of disputes in infringement disputes. Nowadays, the number of court cases is increasing sharply. Only when the focus of disputes is accurate and the reasoning is thorough enough, can the judgment result be accurate while ensuring To improve trial efficiency and ensure the effective implementation of the law, let’s take a look at a summary of the focus of disputes in infringement disputes. Summary of the focus of disputes in infringement disputes 1

Analysis of the focus of disputes in cases of trademark infringement disputes

1. On the constituent elements.

my country's "Contract Law" stipulates no-fault liability, while tort liability generally adopts fault liability. Only liability for products, hazards, environmental pollution, adjacent relationships, etc. is no-fault liability. Therefore, if the party uses liability for breach of contract as the cause of action, there is no need to prove that the other party is at fault;

If the party uses tort liability as the cause of action, it is necessary to prove that the other party is at fault. In addition, the constitution of a tort must be based on the existence of damaging consequences, and the tort liability caused by it also has damage as a component. However, breach of contract and liability for breach of contract are different from this. In addition to compensation for losses, damage is also a component of liability for breach of contract. The actual occurrence of damage is not a constitutive element for the rest.

2. In terms of the scope of compensation.

The amount of compensation for liability for breach of contract can be agreed by the parties in the contract. If there is no such agreement, according to the provisions of my country's "Contract Law", the amount of compensation should be equal to the loss suffered by the victim due to breach of contract. , generally only includes direct losses. In tort liability, the scope of compensation in principle includes direct losses and indirect losses. When personality rights are infringed, compensation for mental damage can be provided; if the death of another person is illegally caused, the scope of compensation can be extended to the necessary living expenses of the deceased's dependents, etc. .

3. In terms of responsibility.

Tort liability includes both property liability, such as compensation for losses, and non-property liability, such as eliminating the impact, restoring reputation, etc.; while liability for breach of contract is mainly property liability, such as forcing actual performance, payment of liquidated damages, etc. .

4. In terms of exemption conditions.

In addition to the statutory exemption conditions for liability for breach of contract, the parties to the contract may also agree in advance on the circumstances under which they will not assume liability. In tort liability, the exemption conditions or reasons can only be statutory. The parties cannot agree on the exemption conditions in advance, nor can they agree on the scope of force majeure in advance.

5. Differences in liability to third parties.

In liability for breach of contract, if the contract debt cannot be performed due to the fault of a third party, the debtor should first be responsible to the creditor and then recover from the third party. In tort liability, the actor is only responsible for the damage caused to others due to his own fault. Summary of the focus of dispute in infringement disputes 2

Basic method of summarizing the focus of dispute

(1) Elimination method

The summary of the focus of dispute in the case is made during the court hearing , we should first listen carefully to the plaintiff's and defendant's arguments, summarize the parts that are not disputed by the parties, exclude facts that do not constitute or are presumed not to constitute the focus of the dispute, and then prioritize the disputed parts of the statements of both parties, and determine the main content of the dispute. Those facts can be identified as being at issue. Summarizing the focus of the dispute is a process that requires gradual cognition and cannot be accomplished overnight. Especially for some cases with more complex legal relationships, we can proceed in stages in our own trial procedure arrangements, and initially understand the case facts through pre-trial review. If necessary, pre-trial evidence exchange can be carried out to partially exclude the evidence. This will gradually form during the court investigation and court debate stages, so that the layer-by-layer screening of the focus of the dispute can be more accurate.

(2) Similar case analysis method

Although case law is not applied in our country, the guiding role of case law is obvious, and it is also an effective method to accurately apply the law. It is useful for guiding judges to summarize disputes. Focus, especially for cases with complex circumstances and difficult application of law, analyzing similar cases and learning from experience can more effectively summarize the focus of disputes.

(3) Element analysis method

According to the constituent elements of civil legal acts, a comprehensive and sequential inspection can comprehensively and accurately summarize the focus of disputes in the case.

For example, in tort dispute cases, the judge first clarifies the constituent elements of the tort civil legal act, that is, the fact of damage, fault and causal relationship, and checks the constituent elements in sequence. If the parties have no dispute, they will be recognized as facts of the case, and if the parties have disputes, then It should be used as the focus of the dispute to guide the parties to present evidence, cross-examination, debate and certification, so that the trial process will have a clear structure, strict logic and achieve good trial results.

(4) "Backward reasoning"

This is based on the "backward method" often used to solve geometry problems in middle school, that is, backward reasoning. Normal reasoning is to deduce a conclusion based on known conditions, and backward reasoning is to deduce the conditions that should be met based on the conclusion. The "backward reasoning method" is not very effective in finding the focus of controversy.

Still taking the previous case of environmental pollution causing personal injury as an example: the plaintiff claimed that the defendant burned straw in the open air, and the defendant inhaled the mixed gas and was hospitalized for toxic pneumonia, and asked the defendant to compensate for the losses. Let us first assume The plaintiff's claim can be established by ascertaining two facts, namely, the defendant's behavior of polluting the environment and the defendant's personal injury. As for the causal relationship between the two, the defendant needs to prove it. The "backward reasoning" way of thinking is actually an extension of the elements analysis method, and can also be called the reverse elements analysis method.

(5) Comprehensive Judgment Method

In order to avoid the one-sided application of a certain method, resulting in inaccurate summary of the focus of the dispute, the trial judge can apply the above methods respectively and conduct screening. If necessary, sufficient Utilize the collegial system, regular case discussion meetings and other methods to express their opinions and effectively ensure the quality of the summary of the disputed points of the case.

In short, the focus of disputes must be summarized based on one principle. From the identified focus of disputes, the next trial ideas can be seen, which facilitates the next court investigation. If the identified focus of dispute makes people wonder where to start the next court investigation, then there may be a problem with this focus of controversy. Therefore, accurately summarizing the focus of the dispute will help determine the focus of the trial, correctly guide the parties to present evidence and cross-examine, thereby effectively carrying out trial activities and improving the quality and efficiency of the trial. Summary of the focus of disputes in infringement disputes 3

How to summarize the focus of disputes of the parties

First, it is necessary to improve the quality of pre-trial review.

The judge’s views on the issues in dispute between the parties are gradually formed, including at various stages such as pre-trial review, pre-trial conference, trial investigation and document writing.

Therefore, the judge should carefully review the litigation materials in the pre-trial preparation stage, and through reading the files, have a clear understanding of the parties’ claims, main reasons, main facts and main existing contradictions, and should not wait until the court trial to investigate It is only at this stage that the focus of the parties’ disputes is summarized based on the parties’ pleading opinions, which is very important for grasping the focus of the disputes.

Second, necessary preparations must be made for the substantive legal norms of the pleadings of both parties before the trial.

The judge not only needs to search for the substantive legal norms that support the plaintiff’s claims, but also searches for the substantive legal norms that the defendant’s defense claims are based on. This is actually providing the plaintiff and the defendant with " The process of "finding a solution".

The third is to fix the plaintiff’s claims during the court hearing and clarify the defendant’s defense claims.

One principle should be followed when summarizing the focus of disputes. From the identified focus of disputes, the next trial ideas can be seen, which will facilitate the subsequent court investigation. The focus of disputes often arises on the basis of clear defense opinions of the plaintiff and defendant, and through full confrontation between the two parties.

Therefore, in order to accurately define the focus of the dispute, it is necessary to clarify the internal logical relationship between the plaintiff and defendant’s respective claims and the claimed facts and reasons, and to comprehensively and comprehensively analyze the plaintiff and defendant’s defense opinions.