A Study On The Judicial Determinations Of Intellectual Property Crimes Through Penal Regulatory Norms

1997 Chinese Penal Code first attempted to use a specific section to establish a well-rounded penal protection system for intellectual property rights that includes protection on trademarks,copyrights,patents,and trade secrets.This effort set the judicial norms for the effective protection of intellectual property rights.The implementation of The Outline of State Intellectual Property Protection Strategies on June 5th of 2008 was a landmark event that indicated the supreme importance of criminal adjudicating function of the protection of intellectual property rights.Nevertheless,the confusions,conflicts and incoherence in various legal norms among courts in adjudicating IP related penal cases could not be solved merely through the repetitive issuances of judicial interpretations or interpretative guidelines by authorities aiming to disclose the penal legislative intent and clarify the practical confusions,given the specialization threshold of intellectual property,the complexity of the IP related torts,the unclear demarcations between administrative and judicial dual protection of IP rights.It becomes urgent to come up with a solution to ensure the judiciary's leading role indicated in The Outline of State Intellectual Property Strategies.Coming from a long time sitting judge's perspectives,this dissertation is not intended to criticize the current legislations but to clarify the practical confusions through empirical and theoretical research at two levels:common issues in the adjudication of IP crimes and particular difficulties in deciding particular crimes.Constrained by the consciousness of law concept,criminal legislation,criminal justice and law enforcement cohesion of culture protection reasons,current judicial protection of intellectual property rights in China is mainly exist "applicable law and enforcement policy hard to grasp the relationship between punishment line relationship and the people,the protection of intellectual property rights relationship boundaries is set,a number of elements and special criminal pattern that hard,and sentencing issues,including unit crime" such as difficult problem.As intellectual property with private right attribute,being creative,invisibility,exclusiveness,timeliness,regional "such as significantly different characteristics,and the traditional civil rights and public interest and private interest law characteristics of coexistence,therefore become the content of the criminal law to protect the legal interests of intellectual property and criminal law protection has become inevitable.Intellectual property right protection,and the process of the game itself is the interests of all parties of a country's intellectual property rights of the criminal law protection can't be separated from its economic and social development of the actual need,the strength of the criminal protection of intellectual property rights so countries contrast only has relative meaning and no absolute conclusion.The present situation of the criminal protection of intellectual property rights by domain,both inside and outside can be seen that hold the views of the general criminal weak protection of intellectual property rights in China,the author thinks that is not the objective.Elements is that crime and not crime,this crime and the crime of the decisive factor.The effect of intellectual property crime criminal law regulation,inevitably depends on the intellectual property crime of criminal law accurate understanding and recognition of subjective and objective elements.It is generally believed that intellectual property crime is intentional crime.But as a result of the criminal law article 219,paragraph 2,the use of the term "should know",causing intellectual property crime subjective fault form the question of whether or not to include negligence,and formed two kinds of views.Based on the specification to understand the logic of criminal law,criminal law and intellectual property law regulating the gist of oneness and the coordination between criminal law regulation of various intellectual property crime,the author thinks that intellectual property crime are intentional crime view is more appropriate,and in the different charges presents different types on purpose.Knowing that is identified in the specific provisions of criminal law in general,the premise of knowing whether there is to accurately grasp the relationship between the cognizance of the intellectual property crime intentionally has judicial cognizance on the practical significance.To know that the subjective and objective unity,specific analysis stance said compromise is more conducive to accurately judge the offender perception,and the cognizance of criminal presumption method more practical norm.Profitable purpose is necessary constitutive requirements,infringement of copyright crime purpose and contains the direct profit and indirect profit,distinguish the meaning is from the type of complex behavior that can find out profitable purpose the behavior of the node,thus to clarify the scope of review affecting quality,and the fact that sin,accurate judgment behavior person subjective for commercial purposes.Without permission,crime object such as trade secrets,and to reproduce and distribute such behavior is the difficulty in the current intellectual property crime objective elements identified,can practice from legal compliance,torture people bridging of the legal concept and civil perspectives such as the method of helps for specific recognition.Intellectual property crime amount of identifying scope and amount of crime in any form,is not just about sin and the world of sin and restricted,and involved in both,the cognizance of the attempted crime form.Due to the different types of behaviour,practice shape is complex,it is difficult to find a kind of universal standards and calculation method.Judicial practice should follow the "strictly in accordance with the law,the distinction between,with reference to draw lessons from and adapted to the offense" crimes,such as the amount of general principles,at the same time,according to the regulations of criminal law and relevant judicial interpretation into the crime amount types of scoped and selection method is more scientific.Unit crime is the objective existence in intellectual property crime,and the application of the fine punishment and the master-slave make determination of unit joint crime is a difficult problem in this kind of crime.For adapt to pecuniary penalty,in strictly in accordance with the law,at the same time,the key is to pay attention to and principal punishments,and between the unit and the "two" the weight of the configuration fine coordination between;For a unit joint crime of "two" in the main,an accessory,should be comprehensive unit behavior and the "two" behavior essential oneness and "two" personnel punishment has objectively unit under subjunctive identified two areas.As the amount of intellectual property crime,criminal judicial interpretation is specified attempted form exists.Owing to compound,its overlapping of the intellectual property crime,the characteristics of diversity,the practice of the cognizance of this kind of crime unfinished form should follow the principle of subjective and objective unity and the principle of distinction between "can effectively cope with;Currently,constantly improve the level of joint crime of intellectual property organization,means of concealment feature is obvious,the boundary of the joint crime is difficult to master,according to the provisions of the general joint crime of the criminal law only and is not easy to set boundaries,the author thinks that can be used in practice "joint crime general provisions of criminal law is determined based,intellectual property accomplice in judicial interpretation is key to identifying direction and subjective knowledge elements is" the principle of "three steps",and depending on the type of link,behavior,behavior of crime and the function of the position,in accurately clarify the crime and the accomplice"facebook",on the basis of joint-crime types and to define the boundaries of crime and is not a crime.Due to the particularity of intellectual property crime object,cross often occur in practice of tort and related crimes legislation boundary is not clear wait for a reason,intellectual property crime in the crime number that is also the difficulty in judicial practice,and mainly involved in the making and law,imagination phenomenon in understanding and recognition problems.Only said elements in a crime under the guidance of the general standard,according to the essence of a crime in criminal law theory,legal one sin and break a sin number of crimes,including classification theory,distinguish between making and law,imagination phenomenon in making their features and difference,can be accurately determined intellectual property crime in the crime number.For intellectual property crime in the crime number of specific shape and mainly appears as&jiangzhou,competition make the present situation of the dispute,can be based on the judicial practice in the making and law,imagination phenomenon in making the distinction between key,from two aspects of quantity and criminal behavior object synthetically considered.Owing to characteristics of the intellectual property rights form as well as the protection of intellectual property interests balance compatibility,as a macro,medium and micro discretion function of judicial policy,there is no doubt to the judicial organs that intellectual property crime is more directly than other crimes guide significance.As one kind of judicial policy,intellectual property judicial policy nature is "purpose,guidance and normative,stability" and other judicial policy these common features,but given the intellectual property rights has the economic attributes and the nature of game interests of intellectual property rights protection,intellectual property judicial policy and "eclectic interests harmonic,conditionality and relative volatility" of economic development,such as its own characteristics.At present,in addition to "play" the leading role of the judicial protection of intellectual property,an overall policy requirements,"strengthen the protection,classify,resulting modest" judicial policy and the intellectual property,suitable for all the criminal policy of "tempering justice with mercy" criminal justice is to guide the current intellectual property crime judicial discretion activity basic judicial policy,of course,practice should follow the principle of "rule of law" and the principle of "unity effect" guiding principles.Summarized in terms of overall to intellectual property crime punishment should be strictly implement the "strengthening protection" current judicial protection of intellectual property rights the overall requirements of basic policy orientation,and following and principle of a legally prescribed punishment for a adapt to the basic principles of the criminal law in the process of judicial judgment,according to the different special properties,functions and characteristics of intellectual property rights,accurately grasp the boundaries of crime and the crime,and in particular cases resulting moderate protection is reflected on the judgement of the judicial policy guidance.Intellectual property law characteristics of private law and beneficial interest coexist,as well as our country take the intellectual property administrative and judicial dual protection mode of the status quo,to determine the intellectual property crime and punishment in the process of criminal proceeding activities into a case,torture people,not only the objective existence,and the situation is quite complicated,and is mainly manifested in the adjusting range cross,prove standard objective different and complex nature define elements,etc.Punishment line boundary problem,both in order to "quality" and "quantity" as the administrative crime and administrative illegal behavior of boundary point,have their own rationality and the lack of points,and the difference between "quality said." the most appropriate way to express the administrative crime and the relationship between the administrative illegal behavior,and clearly grasp the administrative crime and illegal behavior in the difference of profit violation Angle,make traditional guilty "natural" embedded in the social ethical and legal interests concept together,through the quilt is violation of social ethics involved in the price level to divide the administrative crime and illegal behavior,therefore said the difference between "quality" as the administrative crime and administrative violation of standard points in the most appropriate.Specifically,namely,combining administrative violation of intellectual property rights in China and legislation of intellectual property crime is not completely overlap,the scope of administrative law enforcement and criminal justice exists a certain degree of cross and overlap,so the author thinks that,in practice can take "on the basis of the partitioning behavior type,to the harm of behavior" as the standard to set administrative illegal and criminal,and from idea grasps,the standard law enforcement,cooperatively,coordinated level for "reduced" functions such as cohesion.About torture people limit,can in tort and criminal logic relations,similarities and differences between two kinds of litigation proof standard,the crime of infringement of qualitative factors as well as the austerity of criminal law principle and so on four aspects to set,leaden infliction cross case processing pattern for the people,by the accurate delimit the scope of civil suit collateral to criminal proceedings,actively respond to the holder of the private prosecution rights advocate and build effective cohesion coordination working mechanism and so on functions.