The constitution of tort liability in intellectual property litigation is generally considered to be the four elements of the result of damage, the act of injury, the cause of effect and the subjective fault:
1.Four elements are logical and easier to clarify the thinking of the trial.The system of tort law is mainly carried out around the behavior, without action, there is no responsibility.Starting from logic is also the behavior of the civil subject, and then the legal evaluation of its behavior and legal responsibility.In the actual case trial, the first need to identify the fact is whether the defendant is a prosecution.How can we establish the causal relationship after the elements of behavior are abandoned?In a malicious litigation dispute, the defendant must be the plaintiff of the previous suit, the lawsuit has entered into force the referee, and the previous lawsuit plaintiff's claim has been dismissed by the court.
2.It is difficult to determine the illegality of behavior.There are two kinds of understandings that do not require illegal elements: one is the existence of injurious acts,the natural also contains the elements of illegal.The other is to determine the subjective fault when the natural will take into account the behavior of the illegal.But regardless of whether the illegality and the fault are considered separately or together, the conclusions of the actual cases handled will not change or be different.
3.How to define the result of damage.There are two different points of view about how the scope of the damage result should be determined.First, the defendant in the original litigation should pay the corresponding litigation costs. Second, the original lawsuit of the defendant must be in the litigation expenses, emotional loss, reputation damage other than other losses.