持续侵权状态下前诉裁判对后诉的影响——兼议知识产权诉讼停止侵害执行力的扩张

既判力的核心要义在于阻断当事人对既判事项再争议以及禁止法院对既判事项的再判断。对既判力理论及其法律效果认识上的分歧,加剧了知识产权持续侵权诉讼中重复诉讼、事实预决效力识别的困难,由之引发的裁判相反、法律适用不统一远非孤例。借助真实个案切入,结合指导案例,对"后诉审理前诉期间持续的同一被诉行为"和"前诉已决事实对后诉可否产生免证效"两大常遇难题找寻裁判依据、法理支撑,阐明取舍观点。切换思路,对停止侵权判令作扩张解释,使前诉判决执行力延及知识产权存续期间,被诉侵权人如有异议时须以执行异议或确认不侵权之诉对抗执行,以有效缓解权利人因反复证明而致的对立情绪、及时化解纠纷。

The Influence of Former Action on the Judgement of Latter Action under the Condition of Continuous Infringement——Concurrently Discussing the Expansion of the Executive Power of Ceasing Infringement in Intellectual Property Litigation

The core point of res judicata theory lies in the interdiction of the parties’ redispute and the court’s rejudgement on res judicata. Differences in the understanding of res judicata theory and its legal effects intensifies the difficulty of distinguishing repeated litigation, the pre-decided effect of facts in the lawsuit of continuous infringement on intellectual property rights,which results in the phenomenon of contrary judgement and inconsistent law application far from a single case. Using real individual cases as a cut-in as well as combining with guiding cases, seeking for judgement basis and legal support on two common problems-"the succeeding trial hearing the same accused action that continues during the former trial" and "whether does the facts which have been decided in the former action have the effect of proof exemption for the latter action", demonstrating and clarifying the point of choice. Besides, switch thinking, make expanded interpretation on the injunction which commands to stop infringement so as to extend the enforcement of the former action judgement to the entire intellectual property rights period. The aggrieved party shall resist the enforcement by enforcement objection or non-infringement confi rmation action if he(she) has an objection to the enforcement in order to alleviate the antagonism of the obligees which caused by repeated proofs effectively and resolve disputes promptly.