Since Chinese courts generally adhere to the high accuracy idea of damages and rarely accepting inferential methods,it is difficult for plaintiffs to prove the exact amount of actual loss or infringer's profits.Thus,Chinese courts can only apply statutory damages in most cases,which makes the accuracy of damages low.In comparative law,there are two ways to reduce the difficulty of proof for plaintiffs.One is to reduce standard of proof for plaintiffs,and the other is to allocate the burden of proof between plaintiffs and defendants,which contains the stepwise accuracy idea.According to this idea,plaintiffs have the initial burden of proving the reasonable amount of actual loss or infringer's profits through inferential methods,and then defendants need to further provide evidence to enhance the accuracy of damages.The stepwise accuracy idea can significantly increase the applicability ratio of actual loss and infringer's profits,and enhance the accuracy of damages at a lower cost.Therefore,the stepwise accuracy idea is superior to the existing practice and is worthy of adoption by Chinese courts.Taking e-commerce platform cases as an example,the key to applying this idea is to propose stepwise methods of inferring actual loss and infringer's profits.
damagesstepwise accuracystandard of proofburden of proofinferential methodscost-benefit analysis
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NSTL
万方数据
维普
