The act of infringing intellectual property rights refers to the act of the actor who objectively infringes on the property rights or personal rights of others' intellectual property rights and should bear civil liability. Tort is a violation and deprivation of the intellectual property creator's labor, and it is a corrosive agent that harms scientific and technological progress and cultural prosperity. In recent years, with the continuous awareness of intellectual property rights, people from all walks of life consciously try not to infringe on the intellectual property rights of others. Intellectual property infringement generally includes trademark infringement, patent infringement and copyright infringement.

subjective elements

in the civil tort theory described above, one of the elements that constitute a general tort is that the perpetrator is subjectively at fault, but subjective fault is not the necessary element in the constitution of intellectual property infringement. Article 63, paragraph 2, of China's Patent Law and Article 56, paragraph 3, of China's Trademark Law all establish tort liability without fault. From the above legislative examples, we can see that even if the actor is innocent, he should bear the tort liability, but the tort liability he bears is lighter than that of the actor who is at fault. The actor who is at fault often has to bear the liability for damages in addition to the tort liability of stopping the infringement, destroying the infringing product and eliminating the influence.

the constitution of intellectual property infringement is a controversial issue among scholars. Some scholars have expounded the constitution of intellectual property infringement from four aspects:

Causality

This is an essential element of civil tort in general civil tort theory. However, because some acts of intellectual property infringement do not require damaging consequences, the determination of causality is meaningful only when the infringer's responsibility is determined for the intellectual property infringement that causes damaging consequences.

Illegality

This is an important constituent element of intellectual property infringement. Although many scholars in academic circles are studying whether illegality should be an independent constituent element of infringement, at least in the field of intellectual property infringement, illegality is essential.

the problem of damage facts

in the constitution of general civil tort theory, whether it is three elements, four elements or five elements, it is considered that damage facts are one of the constituent elements of civil tort, but many scholars have pointed out that in the constitution of intellectual property infringement, damage facts (results) are no longer necessary, which is one of the differences between intellectual property infringement and general civil tort.