| The value and role of intellectual property rights are becoming increasingly prominent in reality and even in the future society,but the ability and level of intellectual property protection cannot keep up with the development of the times.General Secretary Xi Jinping pointed out in the twenty-fifth collective study of the Political Bureau of the Central Committee that “criminal laws and judicial interpretations should be improved,and criminal crackdowns should be intensified.” The Outline for Building a Powerful Intellectual Property Country(2021-2035)calls for “increasing criminal crackdowns”.The connectivity of the Internet and the intangibility of intellectual property are naturally in line with each other.IPR infringement and illegal acts in cyberspace are extremely smooth and inexpensive.The losses and impacts to intellectual property owners are incalculable with money.In the face of increasingly serious intellectual property crimes,legislation and judiciary have responded positively.The “Criminal Law Amendment(11)” not only added a new crime of intellectual property rights,increased the range of punishment for intellectual property crimes,but also included service registered trademarks into the scope of criminal protection,but the subsequent relevant judicial interpretations did not keep up with it in time.Difficulty in applying the law.The people’s courts have improved the protection level and efficiency through reforms such as the“three-in-one” trial mechanism for civil,criminal and administrative cases of intellectual property rights,but the reform models and progress vary different.In recent years,intellectual property crime cases have shown a steady upward trend.The main feature is that the infringement object is mainly trademark rights.From 2016 to 2020,the first-instance trademark criminal cases concluded by the people’s courts accounted for most of the first-instance intellectual property crime cases concluded in the same period.The proportions are: 93.44%,94.48%,95.5%,95.29%,and 93.89% respectively;the way of infringement is mainly network infringement.Therefore,research on the judicial issues of online trademark crimes plays a decisive role in combating intellectual property crimes.With the increasing demands of the people for democracy and the rule of law and the in-depth advancement of judicial reform mainly based on the post system reform,people’s voices for the same case and the same sentence are increasingly louder,and the judicial organs have increasingly strict requirements for the uniform judgment standards.After analyzing a total of 796 internet trademark rights crime cases from2016 to 2021,it is found that there are problems such as inconsistent application standards for probation and inconsistent fines for similar cases.On the basis of a large number of case studies,this paper analyzes the differences between the crime composition of internet trademark rights crimes and traditional trademark crimes,investigates the reasons for the inconsistency of internet trademark rights crimes,and discusses the unified judgment standards for internet trademark rights crimes.Theoretical basis.And put forward a proposal to realize the unified judgment standard of internet trademark rights crime from the path of unified conviction and sentencing standards,which is conducive to the protection of the exclusive right of registered trademarks,improves judicial credibility,and meets the people’s needs for fairness and justice.The main part of this paper is divided into four chapters.The first chapter discusses the problems and causes of the internet trademark right crime adjudication.The first section interprets the three types of crimes of the crime of internet trademark rights from four aspects: the subject of crime,the object of crime,the subjective aspect of the crime and the objective aspect of the crime.The crime of trademark commodities,the crime of illegally manufacturing and selling illegally manufactured registered trademarks on the Internet,and their corresponding crimes offline are different in terms of criminal behavior.If the circumstances are serious,criminal responsibility may be investigated for the crime of illegally manufacturing a registered trademark on the Internet.The second section mainly analyzes the situation of a total of 796 internet trademark crime cases between January1,2016 and December 31,2021.The third section mainly analyzes the main problem in the adjudication of criminal cases of internet trademark rights,which is that the adjudication standards are not uniform,resulting in dissimilar adjudication results of similar cases.It is mainly reflected in the non-uniform application of probation,the non-uniform sentence length,the non-uniform amount of fines and other substantive laws,the non-uniform composition of the trial organization,and the non-uniform evidence admissibility standards and other procedural aspects.The fourth section mainly analyzes the reasons for the non-uniform adjudication standards of internet trademark rights crimes.One reason is that the criminal law and other substantive laws are too principled,the trial mode is inconsistent,and the different regional standards lead to non-uniform adjudication standards across the country.subjective reasons such as differences.The second chapter discusses the theoretical basis for the unification of the judgment standards for internet trademark crimes.The first section discusses how to determine the standards of the same case and the same judgment in the criminal cases of network trademark rights.The second section discusses the philosophical analysis of the same case and the same sentence for the crime of internet trademark rights,and believes that the philosophical root of jurisprudence as a social science is that human nature is self-interested rather than altruistic,and judicial jurisdiction is formed by the transfer of individual rights,of course,to serve the people’s request for the same case and the same sentence.The theoretical basis of the same case and the same judgment comes from Weber’s theory of legal formal rationality and fairness theory.Weber’s view of legal formal rationality holds that the law is the basis of judgment and can be used universally and uniformly,that the applicators of the law in the bureaucratic administrative system are rational,and the law is the technical means of formal rationality.The judiciary of our country fully draws on Weber’s view that the law is a technical means of formal rationality,and judicial workers can make equal judgments for similar cases.The fairness theory explains why the perpetrator chooses not to commit the crime or to stop the crime after realizing the same sentence.The third section discusses the value pursuit of a unified judgment standard for internet trademark rights crimes:realizing the fairness and justice of the trial,standardizing the trial behavior,and enhancing the credibility of the court.The fourth section explains the two focus points of the unification of the judgment standards for internet trademark rights crimes: unification of adjudication concepts and unification of rules for the exercise of discretionary powers.The main idea of adjudication is to always adhere to the idea of ??unifying political effects,social effects and legal effects.The unification of rules for exercising discretionary powers mainly includes rules for non-essential use,rules for public exercise,and rules for rational people to exercise.The unification of adjudication standards for internet trademark rights crimes can be focused on adhering to the criminal policy of strict protection,equal protection and lenient protection,and vigorously implementing the retrieval system for similar cases.The third chapter discusses the criminalization path of the unified judgment standard of internet trademark crime.The first section explains how to improve the trial mode of internet trademark crime cases.In the context of the great achievements in increasing the criminal protection of intellectual property rights and the construction of smart courts and the reform of the functions and positioning of the four-level courts,at least one basic-level court in each districted city nationwide has set up an intellectual property tribunal to centralize the trial of the city’s districts.It is the best way to substantively promote the “three-in-one”trial reform of intellectual property rights.The second section discusses the case of cross-network trademarks in the reasonable division of criminals and civilians.The same illegal act of the perpetrator is likely to form an internet trademark criminal-civilian cross case,which needs to be divided to accurately determine the responsibility of the perpetrator.The monism of mitigating offenses and the theory of secondary offenses under the theory of unity of legal order are the generation mechanism of cross-criminal and civil liability in internet trademark cases to resolve legal conflicts,and are also the basis for the distinction between civil tort and criminal offenses in internet trademark cases.The amount involved is the first demarcation basis for criminal-civilian internet trademark cases,and the subjective state is the second demarcation basis for criminal-civilian internet trademark cases;the balance of legal interests can be used as a supplementary demarcation basis for criminal-civilian internet trademark cases.Demarcation basis for the cross-property responsibilities of criminals and civilians in internet trademark cases.The third section interprets the mechanism for adjusting the execution of internet trademark cases.Problems such as the unsmooth connection of executions in trademark cases are not only related to the excessively principled provisions of the law on the transfer of trademark cases,but also related to the lack of transfer procedures.The execution connection mechanism of trademark cases can be adjusted from the substantive aspects such as clarifying the demarcation standard of cross trademark cases of execution and execution,and the procedural aspects such as building an information platform for the connection of trademark cases to execution and execution.In this way,it can quickly distinguish whether the administrative violation of internet trademark is an administrative case or a criminal case,clarify the conviction standards for internet trademark violations,and realize the unification of judgment standards.The fourth chapter discusses the unified sentencing path of the network trademark crime judgment standard.Section 1 defines the standards for filing and prosecuting internet trademark crimes.The“Criminal Law Amendment(11)” concerning the “serious circumstances”of trademark crimes needs to use the amount of illegal income as the measurement standard,and the amount of illegal income and the amount of illegal business is used to unify the basic conviction and sentencing methods of three crimes of internet trademark rights crime.Based on the reality of the current economic and social development,it is reasonable to determine that the standards for filing and prosecuting internet trademark crimes are about three times the standard for filing and prosecuting traditional trademark crimes stipulated in the 2004 Judicial Interpretation.Based on the low actual value of illegal logos,the crime of illegally manufacturing and selling illegally manufactured registered trademark logos on the Internet should be based on the number of illegal amounts as the main standard for filing and prosecution,and with reference to the number of clicks for the crime of copyright infringement through the dissemination of infringing works through the information network.The standard for filing and prosecuting the crime of illegally manufacturing and selling the illegally manufactured registered trademark logo on the Internet is that the illegal logo is clicked more than 50,000 times.The determination of the standard of illegal amount for internet trademark crime is helpful for unified understanding and operation,and plays an important role in unifying the adjudication standards for internet trademark crime.Section 2 clarifies the circumstances of other serious circumstances of internet trademark crimes.The first is to clarify that having received a trademark administrative penalty within two years is the factor of serious circumstances;If the perpetrator commits the internet trademark right crime within two years and has received administrative penalties for trademark infringement,then commits the crime of internet trademark right infringement..There are three main situations where the circumstances of the crime of internet trademark rights are serious: the first is that the counterfeit registered trademark or logo has been spread for more than three years;the second is that the goods with counterfeit registered trademarks are sold abroad and cause bad influence;the third is This is the result of a large number of derogatory behaviors that have adverse effects.The third section explains how to reasonably determine the defense of single-handling in the crime of internet trademark rights.internet trademark crimes and traditional trademark crimes have commonalities in the identification and determination of the amount of illegal gains and illegal business operations,but the defense against single-handling is unique to internet trademark crimes.In practice,some completely accept the perpetrator’s defense of taking orders,some partially accept the perpetrator’s defense,and some do not accept the defense of the behavior.From a theoretical point of view,the object of the perpetrator’s defense against the bill is the illegal amount,which is a passive defense in nature.Whether or not to adopt the defense of fraudulent purchases is related to the determination of the illegal amount,which in turn is related to the conviction and sentencing of the crime of internet trademark rights.From the two aspects of determining the defense of order fraud as the defendant’s free proof model and the fact that the behavior of fraud is illegal,the judge can reasonably determine the defense of fraud against internet trademark rights and unify the judgment standards. |
