As the basic defining system of intellectual property infringement damages,the statuary damage has been transferring from supplementary and overall protection provisions to dominance and absolute ones.Although the trend may o-bey the original purpose of legislative and institution rationality,it has its realistic basis and internal reason.Nowadays,the statuary damage is going to be alienation,when there have been so much problems of logical and legal system,such as the con-flicts between legislative and judiciary,the risks of abusing operating mechanism and the vague of different values.In reflecting on the model that the administration of the justice play a leading role in statuary damage,there is a discretion defect-the arbi-trary surpassing the normalize.If misusing the power,it might arouse negative effects.In epistemology,it should not only be seen as the concept tool in judiciary efficiency comes first,but also should keep the balanced value construct of the damage jus-tice and judiciary efficiency.Based on what we discussed,when we affirm the discretion,the future legislative and judiciary of intellectual property should return to normalization,institution and systematize,which shall function properly and shall basing on the construction of discretion system,on the application of legislative technology and on the guidance of factor rules are car-ried out.According to that,they shall also eliminate their disadvantages and give play to complementary advantages to confor-ming to the justice goal of intellectual property right infringement compensation and to the spirit purpose of innovation incen-tive.
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