content
Crimes of infringing intellectual property rights include: the crime of counterfeiting registered trademarks and the crime of infringing intellectual property rights by selling goods with counterfeit registered trademarks.
Crime of commodity, crime of illegal manufacturing or crime of selling illegally manufactured registered trademarks; Crime of infringing copyright and selling infringing copies; Crime of counterfeiting patents; Crime of infringing trade secrets. Intellectual property is the intellectual achievement of human creative labor, including patent right, trademark right and copyright.
In the past, China's provisions on intellectual property crimes were only scattered in the Trademark Law, the Patent Law and the National Crimes against Intellectual Property Rights.
The Supplementary Provisions on Punishment of Crimes of Counterfeiting Registered Trademarks and the Decision on Punishment of Crimes of Copyright Infringement are not recognized as independent crime categories. 1997 March 14, the Fifth Session of the Eighth National People's Congress passed the Criminal Law Amendment of People's Republic of China (PRC). The revised Criminal Law of People's Republic of China (PRC) regards the crime of infringing intellectual property rights as an independent crime category in the crime of disrupting the order of socialist market economy, thus making it clear that the crime of infringing intellectual property rights is an independent crime category. The provisions of the revised criminal law on crimes against intellectual property rights can be roughly divided into four categories:
The first category is the crime of trademark infringement.
Including: using the same trademark as its registered trademark on the same commodity without the permission of the registered trademark owner, and the circumstances are serious enough to constitute a crime; Selling goods that are knowingly counterfeit registered trademarks, and the sales amount is relatively large, which constitutes a crime; And the crime of forgery and infringement of intellectual property rights.
, unauthorized manufacture of another person's registered trademark logo or sale of forged or unauthorized registered trademark logo, if the circumstances are serious enough to constitute a crime.
The second category is the crime of patent infringement.
Mainly refers to the act of counterfeiting other people's patents, and the circumstances are serious. Publishing a copyright book in which others enjoy exclusive publishing rights, and reproducing and distributing the copyright of their works without the permission of the producer of audio and video recordings,
The third category is the crime of copyright infringement.
It mainly refers to the reproduction and distribution of written works, musical works, film and television video works, computer software and other works without the permission of the copyright owner, the reproduction and distribution of audio and video products made by the audio and video producers without the permission of the audio and video producers, or the production and sale of artistic works with fake signatures of others, which constitutes a crime of copyright infringement.
The fourth category is the crime of infringing trade secrets.
The criminal law stipulates that the business secrets of the obligee are obtained by theft, inducement, coercion or other improper means; Disclosing, using or allowing others to use the business secrets of the obligee obtained by the means mentioned in the preceding paragraph; In violation of the agreement or the obligee's requirement to keep business secrets, disclosing, using or allowing others to use the business secrets in their possession, thus causing great damage to the obligee of business secrets, constitutes the crime of infringing business secrets.
Object element
range
In 2006, the national courts tried criminal cases of infringement of intellectual property rights. "The object of crime is the rights and interests protected by criminal law and violated by criminal acts. Among them, rights mainly refer to rights, including the rights of the state, legal persons and individual citizens, and interests refer to interests. Including national interests, social interests, collective interests and personal interests, including material interests and spiritual interests. " Lin, a scholar in Taiwan Province, said: "The protection of economic criminal law is conducive to the crime of infringing intellectual property rights at the national economic level."
The security of order and economic structure and the legitimate interests of personal property. In other words, the protection interests of economic criminal law include' super-personal' and personal economic interests, that is, public welfare in economic society and personal property interests of consumers and participants in economic activities. The crime of infringing intellectual property rights is a kind of crime. As an upper concept, its lower level includes several crimes such as trademark infringement, patent infringement, copyright infringement and trade secret infringement.
Intangible property right
As far as intellectual property itself is concerned, whether it is trademark right, patent right or copyright, it belongs to an intangible property right. Although its object and the object of ownership are the same in nature, the difference is obvious. The object of ownership is a tangible object such as movable property or immovable property, while the object of intellectual property is an intangible object. As the object of ownership, movable property or immovable property not only exists in the concept; And as a physical phenomenon, it also exists objectively, so its exclusiveness is complete, that is, when one subject uses it, other subjects cannot use it at the same time. Intellectual property, as an intangible property right, exists in an abstract concept, which is not completely manifested in the possession and use of physical phenomena. When a subject uses it, it does not necessarily exclude the use of other subjects. Therefore, intellectual property rights are easily infringed, and it is relatively difficult to find infringement. It can be seen that the object of the crime of infringing intellectual property rights is similar to other traditional crimes of infringing property, but the difference is also distinct. It is this difference that makes the crime constitution, accomplished standard, attempted standard and statutory punishment of the two types of crimes very different.
Core content
However, as an intangible property right and "real right in litigation", the core content of various subordinate rights of intellectual property has its own characteristics. As Japanese scholar Wen Gu said; "Copyright has a strong personality, and its main purpose is to develop spiritual culture; However, industrial property rights have a strong competitive color, and its purpose is to develop material culture. " However, when analyzing the object of the crime of infringing intellectual property rights, we should focus on trademark rights, patent rights, copyright and other rights. If it is specifically refined into property rights or personal rights, it actually divides the integrity of the above rights. Because, as the right of intellectual property, it has this attribute. Of course; This does not mean denying the study of different focuses on various rights. Conversely; It is beneficial to analyze other elements of crime constitution and sentencing.
Object analysis
Through the analysis of the object of the crime of infringing intellectual property rights, the characteristics of statutory crimes such as the crime of infringing intellectual property rights are not only a violation of criminal law, but also a violation of superior laws such as intellectual property law. Therefore, when investigating the criminal object, the standard can no longer, or at least can no longer, take the social harmfulness and subjective malignant criminal characteristics as the main basis for seeking the object. On the contrary, intellectual property rights should be regarded as similar objects. When investigating specific crimes, rights such as trademark right, patent right and copyright are actually a combination of rights. Intellectual property rights in the legal sense include private rights and public rights, personal rights and property rights and many other rights. This is not only the fundamental basis for the independence of intellectual property law from other laws, but also the characteristic that its criminal object is different from natural crimes. The criminal object of the crime of infringing intellectual property rights is a combination of rights: the personal rights and property rights of the infringer of intellectual property rights; It not only infringes on the public rights of the state and society, but also infringes on the private rights of intellectual property rights holders.
Objective elements
Feature expression
The objective elements of the crime of infringing intellectual property rights are the act of infringing others' exclusive rights without the consent of the obligee, and the amount of illegal income is large or the circumstances are serious. Its characteristics are as follows:
Unauthorized source
First of all, the actor's behavior has no source, that is, his behavior has not been agreed or authorized by the obligee. According to the relevant provisions of China's Patent Law and Trademark Law, patents and registered trademarks can be transferred through legal exercise, and the obligee can also agree to use and enjoy this right by a third party. Therefore, when the patentee and the owner of a registered trademark agree to others' use and enjoyment of rights, even if the procedure does not conform to the legal provisions, it is only a general illegal act and does not constitute a crime. Only an act that goes against the will of the obligee without his consent can constitute a crime. Of course, the above-mentioned behaviors are often restricted by exceptions, such as restrictions on copyright or compulsory authorization. Even if the behavior of the actor does not obtain the consent of the right holder, it should be regarded as a legitimate source of rights.
patent rights
Secondly, this behavior mainly infringes on the exclusive rights of others, and in some cases it may be manifested as an infringement and violation of administrative law norms. In the basic form of criminal behavior, it can only be behavior, that is, the actor takes positive action, which violates the provisions of the criminal law. The crime of infringing intellectual property rights can only be constituted by actions, and omission cannot constitute the crime of infringing intellectual property rights. Finally, the crime of infringing intellectual property rights is not a behavioral crime, but a consequential crime. The social harmfulness of its behavior is manifested in its harmful results and criminal circumstances. Therefore, the act must have a large amount of illegal income, a huge amount or other serious or especially serious circumstances. If the amount of illegal income is not large or the circumstances are serious, it does not constitute a crime. For example, "if the amount of illegal income from the crime of infringing personal copyright is more than 20,000 yuan, the amount of illegal income is more than 654.38 million yuan." The subjective negligence of the actor does not constitute the crime of infringing intellectual property rights.
The behavior forms of committing intellectual property crimes vary with the object of rights and specific special laws, but from a macro perspective, it still has the nature of * * * *, that is, its behavior mainly includes:
False behavior
. The so-called counterfeiting means that a third party marks the patent mark, trademark and name of the intellectual property right holder on its products without the consent or permission of the right holder. In China's criminal law, it mainly refers to counterfeiting registered trademarks (article 2 13 of the current criminal law), counterfeiting patents (article 2 16 of the current criminal law) and counterfeiting other people's signatures (article 2 19 of the current criminal law).
Illegal sales behavior
. One refers to the act of selling "counterfeit goods", that is, selling any goods with the same logo as the protected trademarks, patents or substances without permission. The crime of selling goods with counterfeit registered trademarks in Article 2 14 of China's current criminal law belongs to this kind of behavior. The other is the distribution, publication and sale of copyright infringement. Distributing written works, movies, television, videos, computer software and other works with neighboring rights without the consent of the copyright owner; Publishing books that others enjoy exclusive publishing rights.
Illegal production behavior
. The first category is forgery and unauthorized manufacturing. It is manifested in two aspects: first, making it without authorization; The second is to make it beyond the scope of authorization. For example, article 2 15 of the current criminal law is the crime of illegally manufacturing registered trademark marks. The second kind of behavior is illegal copying, which copies other people's works by printing, copying, copying, rubbing, recording, video recording and copying. For the purpose of making profits without the permission of the obligee. For example, the crime of copyright infringement in Article 2 17 of the current criminal law of our country. (4) The act of obtaining, disclosing or using business secrets by improper means. It is complicated to identify the criminal object of the crime of infringing intellectual property rights. Its content must ultimately be based on the provisions of the intellectual property law and change with the changes. Therefore, the target composition of such crimes varies from country to country. The provisions of China's criminal law basically adopt the narrow standard of intellectual property rights, but at the same time, it also adds some broad contents including trade secrets. But the scope is still very limited. At present, most countries in the world have rich constituent objects, some of which are worth learning from our legislation:
First, the trademark adjacent signs.
. Trademark adjacent marks refer to all words and graphics used to mark the products or services of enterprises except trademarks, mainly including the packaging, trade name and name of origin of goods. The criminal laws of quite a few countries and regions have clear provisions on infringement of adjacent marks of trademarks. For example, the criminal code of Taiwan Province Province has long stipulated the crime of obstructing trademark offices; There are four kinds of charges, namely, the crime of forging trademarks, the crime of trade names, and the crime of falsely marking commodities. In addition to the full packaging protection of a very small number of domestic wines; There is no special legal protection for other adjacent marks, but the Civil Liability for infringing the adjacent marks of trademarks such as names and covers is stipulated in the Anti-Unfair Competition Law, which obviously cannot adapt to the reality of the development of socialist market economy. It is suggested that the part of trademark infringement crime should reflect this practical need in criminal legislation to further standardize the content of criminal law.
Second, neighboring rights.
. China's legislation on the crime of infringing intellectual property rights is not connected with the existing relevant civil laws and legislation, which can not meet the needs of cracking down on such crimes, while there are relevant legislation abroad, which is worth learning from.
Duration protection
Because China's intellectual property law protects part of the rights of patents and copyrights within a certain period of time, crimes against intellectual property rights can only occur within this period, and beyond this period, it does not constitute a crime. China's existing criminal law does not provide for this, which may cause difficulties in judicial operation. So, it should be passed.
Criminal law provisions
The subjective aspect of the crime of infringing intellectual property rights can only be intentional and cannot constitute negligence. This is because: first, from the criminal law theory, the crime of infringing intellectual property rights can be classified as a statutory crime. As a social phenomenon, a legally prescribed punishment for a crime does not necessarily contain the nature prohibited by law. The reason why the state thinks this kind of behavior is a crime is entirely due to the consideration and needs of its administrative policy. Because of its weak ethical condemnation, statutory punishment should not be too subjective, and the perpetrator should be regarded as a crime only if it is intentional. Negligence is usually regarded as a general illegal act. This is the inevitable requirement of restraining the value orientation of criminal law. Secondly, as far as criminal legislation is concerned, considering that criminal legislation is based on the principle of punishing intention, with negligence as an exception, and the legislative principle of generally not stipulating criminal intention and clearly stipulating negligence, the crime of infringing intellectual property rights should undoubtedly be intentional.
From a cognitive point of view,
From the perspective of cognition, the intention of the crime of infringing intellectual property rights includes: the actor must have a certain degree of understanding of the nature of the criminal object, that is, knowing that it is a registered trademark, knowing that it is another person's patent or patented product, and knowing that it is the mark of another person's registered trademark; Or goods that are knowingly registered trademarks of others are the copyright and know-how of others. At the same time, the actor must also have a certain degree of understanding of the nature of his behavior, such as counterfeiting, selling, illegal copying and so on. Judging from the will factor of this crime, there are also factors of hope or laissez-faire: most actors actively pursue, that is, pursue illegal gains and the loss of reputation and credibility of works; At the same time, it does not rule out that in a few cases, it is indifferent to the serious consequences caused by other people's works, registered trademarks and patents. In other words, the crime of infringing intellectual property rights is a direct intentional crime in most cases and an indirect intentional crime in a few cases.
Content of criminal purpose
There are different views on the content of the purpose of the crime of infringing intellectual property rights, especially whether it is for profit. Moreover, in the current criminal law, the crime of copyright infringement and the crime of selling infringing copies stipulate "for profit" as the necessary elements, while the crime of counterfeiting registered trademarks, the crime of selling counterfeit registered trademarks, the crime of illegally manufacturing and selling illegally manufactured registered trademarks, the crime of counterfeiting patents and the crime of infringing trade secrets do not stipulate "for profit" as the necessary elements for the establishment of crimes. There are two main views in theory: the first view holds that the crime of infringing intellectual property rights must be intentional and for profit; Profit-making is the subjective feature of this kind of crime, and it is also the subjective element of the crime; The second view is that the current criminal law only stipulates "for profit" for the crime of copyright infringement, but there is no provision for other crimes of intellectual property infringement, and there is no basis for differential treatment. It is believed that the criminal laws of Japan, Italy, France and other countries do not regard "for profit" as the subjective element of the crime of copyright infringement, and the legislative experience of these countries can be used for reference. The first view simply includes the crime of infringing intellectual property rights into the crime of corruption, which is also inappropriate. Infringement of intellectual property rights by infringing on the personal rights of others or other complicated motives or purposes, which causes serious circumstances such as bad and serious consequences, should also be punished as a crime.
The subjective negligence of the actor does not constitute the crime of infringing intellectual property rights.
First of all, it should be determined by the characteristics of the crime of infringing intellectual property rights. From the perspective of criminal law theory, intellectual property crimes can be classified as administrative crimes, that is, acts that violate economic and administrative laws such as trademark law, patent law, anti-unfair competition law and copyright law formulated by the state and have serious circumstances. Because of its weak moral condemnation, administrative criminals should not be too harsh on their subjective intentions or on the actors. Secondly, the reason why intellectual property crimes can only be constituted by intention but not negligence is also determined by the provisions of the criminal law, because according to the provisions of the criminal law, only those who have provisions on negligent crimes can bear criminal responsibility. Therefore, whether negligence can constitute the crime of infringing intellectual property rights should be limited by the criminal law. The criminal law does not clearly stipulate that an act is directly harmful to society and cannot be punished as a crime. Third, negligence does not constitute a crime, which is in line with international legislative principles. Except Italy, most countries and regions in the world do not classify negligence as a crime. Therefore, the author believes that bringing negligence into the subjective aspect of crimes against intellectual property rights not only does not conform to the principle of criminal law, the principle of a legally prescribed punishment for a crime, but also does not conform to the development trend of criminal legislation against intellectual property rights crimes in the world.
The inaction of the actor does not constitute the crime of infringing intellectual property rights.
The subjective element of the crime of infringing intellectual property rights is "for profit", which determines that all actors take positive actions and pursue the hope of the crime, that is to say, all objective actions take the form of actions, and inaction does not meet the objective elements of the crime. Inaction is a manifestation of harmful behavior corresponding to action, which means that the actor has a specific legal obligation to implement a certain behavior, which can be implemented but not implemented. The following three conditions should be met to judge the crime of omission. First, the actor has a specific legal obligation to carry out a certain act, which is a prerequisite for the establishment of omission. Second, the actor has the ability to perform specific legal obligations, which is an important condition for the establishment of omission. Third, the actor's failure to perform the specific legal obligations of the act is the key condition for the establishment of the omission. It should be emphasized that not all acts that violate the obligations explicitly stipulated in non-criminal law constitute the obligation basis of omission, and only acts recognized or required by criminal law can be used as the basis of action. In other words, in this case, the obligations expressly stipulated by the law, on the one hand, need the provisions of other laws and regulations, but also need the recognition of criminal law. If there are only other laws and regulations, there is no recognition or requirement of criminal law.
Even if the actor fails to fulfill this obligation,
Does not constitute a crime. For example, the Regulations on the Protection of Information Network Communication Rights stipulates that online content service providers have the obligation to review and delete infringing works. However, if the inaction of the network content service provider constitutes a crime, there is no provision in the general and specific provisions of the criminal law, so the inaction of the network content service provider does not constitute a crime. For another example, the Marriage Law stipulates that family members have a legal obligation to support each other, while Article 26 1 of the Criminal Law stipulates that family members fail to perform their maintenance obligations, and criminal responsibility shall be investigated on the grounds of abandonment in serious cases, which is a typical omission and constitutes a crime. In addition, the crimes of tax evasion, embezzlement and refusal to perform the effective judgment of the court are all omissions.
Article 213 of the Criminal Law stipulates that if a trademark identical to its registered trademark is used on the same commodity without the permission of the registered trademark owner, if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also or only be fined; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined. Article 214 Whoever sells goods that are knowingly counterfeit registered trademarks, and the sales amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; If the sales amount is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined. Article 215 Whoever forges or makes a registered trademark logo of another person without authorization or sells a forged or made registered trademark logo without authorization, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or shall only be fined; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined. Article 216 Whoever counterfeits another person's patent, 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. Article 217 Whoever, for the purpose of making profits, commits any of the following cases of copyright infringement, and the amount of illegal income is relatively large or there are other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or shall only be fined; If the amount of illegal income is huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined: (1) Reproduction and distribution of written works, music, movies, television, video works, computer software and other works without the permission of the copyright owner; (2) Publishing books with exclusive publishing rights enjoyed by others; (3) Reproduction and distribution of audio and video products made by the producer without the permission of the producer; (4) producing or selling works of art with forged signatures of others. Article 218 Whoever, for the purpose of making profits, knowingly sells infringing copies specified in Article 217 of this Law, and the amount of illegal gains is huge, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined. Article 219 Whoever commits one of the following acts of infringing on trade secrets, thus causing heavy losses to the right holder of trade secrets, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined; Whoever causes especially serious consequences shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined: (1) obtaining the business secrets of the obligee by theft, inducement, coercion or other improper means; (2) disclosing, using or allowing others to use the business secrets of the obligee obtained by means of the preceding paragraph; (3) disclosing, using or allowing others to use the business secrets in their possession in violation of the agreement or the requirements of the obligee to keep the business secrets. Anyone who knows or should know the acts listed in the preceding paragraph and obtains, uses or discloses other people's trade secrets shall be regarded as infringing on trade secrets. The term "business secrets" as mentioned in this article refers to technical information and business information that are not known to the public, can bring economic benefits to the obligee, are practical and are kept confidential by the obligee. The obligee mentioned in this article refers to the owner of the business secret and the user of the business secret with the permission of the owner. Article 220 Where a unit commits the crimes specified in Articles 213 to 219 of this section, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible shall be punished in accordance with the provisions of this section.