Several Research Of The Crime Of Selling Commodities Bearing Counterfeit Registered Trademarks

Trademark and the goodwill for a enterprise are important intangible assets.The essence of protecting trademark right is to protect the brand value,market value and core competitiveness of the enterprise.With the change of market competition mode and the improvement of intellectual property protection awareness,the number of cases of selling fake registered trademark commodities seized by judicial organs is increasing year by year.However,from the analysis of the current situation of the legislation of this crime,there are still some deficiencies in the subject identification,subjective identification,attempted form determination,crime amount calculation and other aspects.Based on these problems,this paper analyzes relevant legal provisions,judicial interpretation concepts and views of relevant scholars,and puts forward corresponding views and solutions,so as to play a role in improving the theoretical study of this crime.According to the criminal law,the unit can be the subject of this crime,and should be applied to "double punishment system".However,only after examining the legitimacy,independence of will and ownership of income of the unit,can the unit be recognized as a qualified subject.In the application of "double punishment system",it should reasonably limit the scope of directly responsible personnel,in strict accordance with "the unit in the identity of workers","play an important role in the crime" two standards,determine the scope of punishment,effectively do not waste not vertical.For with the help of online sales model and appear to open shop,implementation of the "single" brush,brush "praise" behavior,and in the circle of friends forwarding counterfeit registered trademark commodities such as the emergence of new assistance this crime on the implementation of the offender,shall,in accordance with the standard of accomplice,premise for actor "knowingly" into sin,in distinguishing between assist behavior,on the basis of definition into the scope of crimes in accordance with the principle of prudence.It is a necessary condition for the crime that the perpetrator knowingly sells the counterfeit attribute of the trademark."Knowing clearly" reflects the intention of the actor to sell fake registered trademark commodities subjectively.For the specific content of "knowing",the "two-element theory" is more appropriate.When the actor knows the object of crime and the objective aspects of crime,he can be identified as having the intention of crime.Since it is difficult to identify the doer's "knowing" in practice,the judicial interpretation takes "ought to know" as a form of constructive "knowing"."Should know" is different from criminal negligence "shall be foreseen,in the judgment of the perpetrator is not whether the implementation of the" know ",but for the intentional crime,on the basis of existing direct evidence,can not be sure the offender real psychological state is "know" or "I don't know," a logical judgment results of behavior person state of mind.There is a great controversy in the academic circles about whether the amount of crime has the state of attempted.As far as this crime is concerned,there should be the state of attempted crime.From the analysis of the logic relation of crime form,the amount of legal incrimination determines whether the actor constitutes the standard of accomplished crime.When the actual amount of sales does not reach the legal amount,as long as the crime is established,it can be considered as the attempted crime.From the analysis of the constitutive elements of criminal attempt,when the doer has three elements of criminal attempt at the same time,it should be considered as criminal attempt.From the analysis of the legislative purpose of criminal law,the social harmfulness of some attempted cases is not offensive and accomplished,and the standard of criminal punishable is achieved.From the analysis of the judicial practice,denying the existence of the attempted form of this crime may lead to the perpetrator's willful hoarding of infringing commodities without fear of being punished,so there is a suspicion of indulgent crime.The judgment of the attempted form of this crime should strictly follow the three elements of "already started","failed to succeed" and "failed to succeed",which are the reasons other than the behavioral will.The amount of the crime is the key basis for the conviction and sentencing of the crime.At present,the four methods of determining the amount of the crime are the sales amount,the price tag,the average selling price of the infringing commodities and the intermediate market price of the infringed products.It should be classified on the basis of distinguishing "fake for real" and "knowing fake for buying fake".As for the sales mode of "fake for true",the average price of some infringing commodities sold should be used first,and then calculated according to the order of the intermediate price,the list price and the evaluation price of the infringing products in the market if it is impossible to find out.To "know false buy false" type sale,same priority USES already sold partial tort average commodity price,but below the circumstance that cannot find out,should use appraisal orgnization to evaluate price directly.