Research On The Judicial Application Of The Crime Of Selling Commodities With Counterfeit Registered Trademarks

In order to better regulate the sale of commodities bearing counterfeit registered trademarks,"the Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Intellectual Property Infringement" issued by Supreme People’s Court,Supreme People’s Procuratorate and Ministry of Public Security,which established the attempted form of the crime and the sentencing standard,and used "value amount" instead of "value of unsold inventory".This article stipulates the sentencing standards for the coexistence of sales and non-sale,It seems comprehensive and practical,but from the perspective of social harm,this sentencing method has caused the problem of guilty and punishment do not match.At the same time,the calculation of the value of goods has always been the key to judging whether it constitutes a crime of selling commodities bearing counterfeit registered trademarks(attempts),however,the rules for calculating the value of goods do not reasonably determine the applicable order between the actual average selling price standard and the listing price standard.The median market price of the infringed product standard has also led to excessive calculation of the amount,the phenomenon of "forced sales" and the problems of excessive incrimination and excessive punishment,these problems have continued to this day and have not been resolved."Criminal Law Amendment(11)" to the Criminal Law changed the criminalization standard for the crime of selling commodities bearing counterfeit registered trademarks from "sum obtained through sale is relatively huge" to "the amount of illegal income is relatively large or there is any other serious circumstance",the judicial interpretation has not been issued yet,resulting in the legal application of this crime brings new problems.In judicial practice,courts have different determinations on the meaning of illegal income,some courts deduct the cost of sales in the calculation of illegal income,while others do not,the lack of clear regulations has led to different judgments in the same case.At the same time,there is no clear specific type of "other serious circumstances",its applicable standards are vague,and there is no clear basis for judgments that constitute "other serious circumstances" in judicial practice,which increases the discretion of judges.This paper analyzes the causes of the judicial application of the crime of selling counterfeit registered trademarks,it is suggested to solve the existing problems from the following aspects.Firstly,in order to restore the facts of the case to the highest degree,it is recommended to take the actual average selling price standard as the first standard for calculating the value of goods,in view of the phenomenon of random price quotation in practice,it is recommended to strictly distinguish the authenticity of the price,so as to prevent the perpetrator from evading criminal responsibility by arbitrarily bidding the price.Secondly,from intellectual property crime system and the legislative purpose of "Criminal Law Amendment(11)",the calculation of illegal income should adopt the "profit theory",and the scope of the sales cost should be reasonably defined,and determine whether the corresponding sales costs are deducted according to the crime stage.Finally,clarify the elements of judgment and prescribed method of "other serious circumstances","other serious circumstances" shall be stipulated in the form of "limitation of general provisions + exemplified circumstances of crime".