The Virtual Status And Resolution Of The Crime Of Selling Infringing Copies

In judicial practice,the proportion of selling infringing copies is identified as the crime of selling infringing copies is low,and it has been recognized as other crimes,which leads to principal crime in a virtual status for a long time.This situation affects the realization of the original intention of the legislation and is not conducive to the normative implementation of criminal judicial activities.Through the analysis of the samples of judicial decisions,it is found that principal crime falls into the virtual status.First,it is difficult to prove the amount of illegal income,and the detailed provisions for serious circumstances have not been clearly,which makes it difficult to prove that the behavior meets the standard of conviction.Second,whether principal crime has the form of attempt and the standard of identification is still controversial,which means that some uncompleted sales cannot be considered as constituting principal crime.Third,there is controversy between "duplication and distribution" & "sale",and selling infringing copies is mostly to be identified as the crime of infringing copyright.Fourth,selling infringing copies is recognized as operating illegal publications and thus punished as the crime of illegal business.If the above problems are solved,the virtual status of principal crime is resolved also.As for the standard of conviction,the standard of illegal income cannot be modified or abolished now.As for the circumstance standard,the practice of "amount only" should be eliminated.The standard is set according to the sales number and amount with the form of the combination of amount and non-amount.Meanwhile,the personal danger the possibility of recidivism should be considered,and the penalty for special criminals should be determined by 50% of the conviction standard.As for the attempted form of principal crime,no matter from crime of amount theory,the principle of attempted crime or the mode stipulated by the law,it can have attempted form.The value and number of the unsold infringing copies are the unfinished form of the sales amount and number,which can be used as the standard of attempted crime.Based on the conviction standard of principal crime,the value and number can be expanded by three times as the standard of attempted crime.In the case of partial accomplished and partial attempted,the heavier penalty should be applied after comparison.In terms of the relationship between principal crime and the crime of infringing copyright,the imaginative joiner of offense cannot be formed between them.The overlap of articles of law will lead to principal crime loss the applicable significance,while the subtype overlap of articles of law has the suspicion of "sentencing-determined conviction".Therefore,the two crimes should take the path of distinction.Copyright Law should be the precondition law of Copyright Criminal Law."Duplication and distribution" means duplication,distribution,or both,and "distribution" have the same meaning as "sale".On this basis,the object of crime is taken as the standard to distinguish two crimes.In the crime of infringing copyright,duplication or both duplication and distribution are aimed at infringing duplicates made by the defendant of this crime,and distribution is aimed at original and legal copies.Principal crime only includes infringing copies that was not duplicated by the defendant of principal crime.In the relation between principal crime and the crime of illegal business,their legally protected interests and the object of crime are different,so they cannot form a concurrence relation.The crime of illegal business protects the market access order of franchise,but principal crime protects copyright.The object of principal crime is limited to infringing copies of a series of objects specified in Article 217 of the Criminal Law.Although it belongs to one kind of illegal publication,it is not the illegal publication in the crime of illegal business.In addition,it does not affect the identification of principal crime whether the perpetrator has qualifications.In conclusion,the conduct of selling infringing copies cannot constitute the crime of illegal business.