Study On The Criminal Private Prosecution Of Counterfeit Patent Crime

Article 216 of the Criminal Law of 1997 stipulates that "Those who counterfeit others’ patents,if the circumstances are serious,shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also,or shall only,be fined." Since then,the crime of counterfeit patent has been included into the range of criminal law,but the criminal law only sets this charge for the crime of patent infringement.In recent years,with the increase of patent application,patent infringement cases remain high,but the crime of counterfeit patent is rarely happened,and the protection of patent right criminal law is powerless.This paper focuses on three aspects of the present criminal private prosecution system,namely,the burden of proof,the recognition of behavior and the prosecution of counterfeit patent crime,From the Angle of legislation and judicature,the author analyzes the reasons and difficulties of proving evidence for the criminal prosecutor of counterfeit patent crime.By comparing the nature,mode,legal liability and extraterritorial provisions of illegal patenting,patenting counterfeiting and patenting impersonation,The three behaviors are defined so as to grasp the characteristics of behaviors and the problems of judicial application in the criminal private prosecution of counterfeit patent crime.Through data analysis,relevant cases and the study of the relevant legal provisions of cross execution and cross execution,the paper analyzes the dilemma faced by the criminal private prosecution procedure of counterfeit patent crime under the current background and the necessity of improving the criminal private prosecution system of counterfeit patent crime.Finally,the author puts forward some suggestions to perfect the criminal private prosecution system of counterfeit patent crime,mainly from three aspects: perfecting the scope of legislative regulation,evidence system and concrete prosecution procedure.One is to adjust the scope of regulation of the crime of counterfeit patent,increase the criminal law regulation of patent impersonation,reduce the threshold of crime and improve the standard of conviction and sentencing.The second is to improve the evidence system of counterfeit patent crime cases,suggesting lowering the proof standard of private prosecution cases;In order to solve the problem of the difficulty of proof for the private prosecutor of the crime of counterfeiting patent,the key point is to protect the evidence collection right of the litigant,and it is suggested to appropriately expand the application of the reversal of burden of proof in the private prosecution procedure.Third,perfect the procedure of transferring patent right execution,perfect the evidence conversion of patent right execution execution connection,strengthen procuratorial supervision.Fourth,strengthen the mediation mechanism of private prosecution cases,and build a diversified resolution system of contradictions and disputes.