(1) The obligee does not need to prove that the actor is subjectively at fault in the realization of the right of claim for real right or the assumption of civil liability for real right. Because, the obligee only wants to restore the damaged property right to its perfect state. If the victim wants to claim damages from the perpetrator, he should prove that he was subjectively at fault when he committed the infringement. (2) The realization of the right of claim for real right is not based on the premise that the behavior of the actor causes property losses or other losses to the victim. The premise of the actor's liability for damages is that the offender has caused the victim's existing property or non-property damage. (3) The exercise of the claim for creditor's rights is limited by the statute of limitations, while it is difficult to apply the statute of limitations to the claim for real rights. (4) The subject of exercising the right of claim for real right is not limited to the owner of real right, because the right of claim for real right is inseparable from the thing, and any possession of the thing constitutes an infringement or hindrance, and the holder and possessor of the thing can exercise this right of claim. If the lessee of the leased property infringes on the leased property by others, he may bring a lawsuit to exercise the above rights. Therefore, this is an action in rem. The exercise of creditor's right of claim is based on the relative person and on the premise that the obligee suffers actual damage. Therefore, only the injured party can bring a lawsuit for the defendant, so this is a personal lawsuit. The right of claim for real right and the right to return the original object based on real right request are not limited by the statute of limitations. Article 196 of the Civil Code of the People's Republic of China stipulates that the limitation of action shall not apply to the following claims: (1) requesting to stop the infringement, remove the obstruction and eliminate the danger; (2) The obligee of immovable property right and registered movable property right requests to return the property; (3) Requesting to pay alimony, alimony or alimony; (4) Other claims for which the statute of limitations does not apply according to law. The effectiveness of real right is the mandatory guarantee given by law. Theoretically, the effects of real right mainly include exclusive effect, priority effect, recourse effect and real right claim effect. According to the above explanation, the claim for real right is completely different from the claim for damages, and the claim for damages is a typical claim for creditor's rights. Legal objectivity:
The standard of compensation for intellectual property infringement damages According to the provisions of the Patent Law, the amount of compensation for patent infringement is determined according to the actual losses suffered by the obligee due to infringement; If the actual loss is difficult to determine, it can be determined according to the interests obtained by the infringer due to infringement. If it is difficult to determine the loss of the obligee or the benefit of the infringer, it shall be reasonably determined by referring to the multiple of the patent license fee. The amount of compensation should also include the reasonable expenses paid by the right holder to stop the infringement. If it is difficult to determine the loss of the obligee, the benefits obtained by the infringer and the patent license fee, the people's court may determine to pay compensation of not less than 1, yuan but not more than 1 million yuan according to factors such as the type of patent right, the nature and circumstances of the infringement. The compensation standard is the core issue of damage compensation. As a criterion to measure intellectual property infringement damage, it directly affects the scope of compensation and the determination of compensation amount. At present, in the field of intellectual property law, many scholars hold the multi-standard theory of compensation for damages caused by intellectual property infringement, that is, the following two standards are used as compensation for damages at the same time: first, the actual economic losses caused by the infringer to the obligee; The second is all the profits obtained by the infringer because of the infringement. The judicial practice of intellectual property rights also implements this double standard. Moreover, because it is difficult to calculate the actual amount of economic losses, it is relatively easy to prove the amount of benefits obtained by the infringer because of the infringement. Therefore, the court often takes the latter as the standard when determining the liability for damages. The author thinks that the multiplicity of this compensation standard and the preference for one over the other in the application of the standard are the primary problems in the compensation system for intellectual property damage. As a criterion, the compensation standard requires people to apply the same scale to the same kind of things. If we think that "standard" can be multiple, this is first of all a misunderstanding of "standard". This incorrect understanding will inevitably lead to confusion in practice. At present, a series of problems caused by different standards of damages adopted by local courts have explained this point. Therefore, the standard of damages can only be single, not multiple. As mentioned above, in the case of adopting the Double Indemnity standard, the court often chooses the profit obtained by the infringer due to the infringement. In fact, there are many situations in which the infringer gains: the gain is roughly equal to the loss of the victim; The profit is less than the actual loss of the victim; There is no profit, but it has caused losses to the victim. In the latter two cases, if the profit obtained by the infringer is taken as the compensation standard, the amount of damages will be less than the actual loss of the victim. This is also the reason for the abnormal phenomenon that the plaintiff "won the lawsuit but lost money" in reality. For example, in a copyright infringement case concluded by a city intermediate people's court, the court ruled that the defendant compensated the plaintiff for 2, yuan on the basis of the defendant's profit, and the various expenses provided by the plaintiff for litigation alone amounted to more than 5, yuan. It can be seen that taking the defendant's profit as the standard of damage compensation can not achieve the purpose of "compensating" the victim, which is contrary to the purpose of protecting the legitimate rights of the obligee and sanctioning the violator by law. Then, what should be the compensation standard for intellectual property infringement damage? Through the analysis of the following three aspects, it is not difficult to get the answer to this question. First of all, from the perspective of the law of economic equivalence, this law requires the actor to pay the same price for the consequences caused by his actions, which is roughly equal to the price that the victim deserves (this is the consideration). Consideration is always the basic element to determine compensation. Secondly, judging from the basic principle of civil law "paid for equal value", according to this principle, on the one hand, in legal economic activities, unless otherwise stipulated by law or otherwise agreed in the contract, the party that obtains the property interests of others shall pay the corresponding price or other property interests to the other party; On the other hand, in illegal civil activities, the actor must compensate for the losses caused by his actions, and the scope of compensation should be consistent with the scope of losses. Thirdly, from the perspective of "damages" itself, the so-called "compensation" means "compensation" and "compensation" means to restore the damaged rights to the state before the infringement by compensating the victims for the losses suffered by the infringement. Therefore, only the actual damage (including property loss and mental damage) caused by the infringer to the obligee can meet the above requirements as the standard of damage compensation. The establishment of this standard provides a fair and reasonable objective economic basis for the subsequent scientific determination of the scope and amount of damages.