In recent years, the crime of infringement of intellectual property rights has become increasingly serious. As far as the current status of intellectual property protection in my country is concerned, a set of civil, administrative and criminal intellectual property legal protection systems have been basically established. However, compared with the administrative and civil protection of intellectual property rights, criminal protection is obviously lacking in strength. It is undeniable that the criminal crackdown on intellectual property infringement crimes is an important part of the legal protection of intellectual property rights and is also the last line of defense for intellectual property rights protection. Through empirical research on the cases of intellectual property crimes handled by the city's procuratorial organs, this article summarizes the characteristics and existing problems in handling such cases, analyzes the reasons, and makes suggestions on how to effectively combat crimes of intellectual property infringement.

1. The handling of criminal cases of intellectual property infringement by the city’s procuratorial organs in recent years

From 2005 to the first half of 2009, the city’s procuratorial organs *** accepted applications from the public security organs for approval 510 suspects of intellectual property infringement were arrested, 431 were arrested with approval and 74 were not approved. During the same period, 418 cases involving 746 individuals were accepted and transferred for review and prosecution, 348 cases involving 583 individuals were prosecuted to the court after review, and the courts made guilty verdicts for 336 cases involving 554 individuals. [1]

According to the author’s research on the Jiading District People’s Procuratorate, from 2005 to the first half of 2009, the procuratorate handled 17 criminal cases of intellectual property infringement involving 26 people, involving 8 crimes of counterfeiting registered trademarks. 10 persons were charged with selling counterfeit registered trademarks, 12 persons were charged with 7 cases; 3 persons were charged with 1 infringement of trade secrets; and 1 person was charged with illegal manufacturing and selling of illegally manufactured registered trademarks. All prosecution cases accepted by the court resulted in guilty verdicts. Among them, 10 cases involving 13 people were sentenced to less than 5 years and suspended, and 1 case was sentenced to more than 5 years and suspended.

According to relevant statistics, from June 1993 to June 2005, the Pudong New Area People’s Procuratorate accepted 25 criminal cases of intellectual property infringement involving 36 people transferred by the public security organs for review and prosecution, with an annual average of less than 2 However, from July 2005 to September 2008, the number of criminal cases of intellectual property infringement that occurred in Zhangjiang High-tech Park alone reached 46 cases involving 77 people, with the annual average rising to more than 15 cases, showing a significant increase. 〔2〕?

2. Analysis of the characteristics of intellectual property infringement cases handled in this city

As for the criminal cases of intellectual property infringement currently handled in this city, after analysis, they have the following characteristics: Features:

(1) The types of cases are relatively concentrated

The criminal cases of intellectual property infringement *** involve 7 charges. However, an analysis of the intellectual property crime cases accepted by the city's procuratorial organs from 2005 to the first half of 2009 shows that the crime of selling goods with counterfeit registered trademarks accounts for the vast majority, followed by the crime of counterfeiting registered trademarks, and the crimes involved are relatively concentrated. [3]?

Among the intellectual property infringement cases handled by the People's Procuratorate of Jiading District, cases of infringement of exclusive rights to registered trademarks are the main ones, accounting for 88% of the total cases. The infringed registered trademarks are mainly well-known Chinese and foreign trademarks such as "China", "Double Happiness", "Philips", "Shanghai Volkswagen", "Canon", "hp", etc. The products involved are usually tobacco, lamps, ink cartridges and other daily and office items. supplies, but also technical instruments such as constant temperature and humidity testing machines and ultrasonic flow meters. In these cases, due to the low investment costs and huge profits of counterfeiting famous brand products, obtaining huge profits by counterfeiting well-known trademarks has become a prominent feature of this type of crime.

(2) The identities of the subjects involved in the case are complex and their education levels are relatively high

According to statistical data from the city’s procuratorial system, the identities of the subjects involved in the case are complex, including 11 professional and technical personnel and leading cadres 52 people, including 96 managers, 323 unemployed people and 249 other staff. Among the persons involved, 634, accounting for 80%, had a high school education or above, of which 117 had a college degree or above.

Among the persons involved in intellectual property crimes handled by the Jiading District People’s Procuratorate, 4 are legal representatives of the company, 1 is a sales manager, 1 is a purchaser, 2 are workers, and 1 is a staff member of a non-state-owned unit. 2 are self-employed workers, 6 are farmers, 4 are unemployed, and 2 are in other occupations. Among them, 1 has a bachelor's degree, 2 have a college degree, 4 have a high school degree, 9 have a junior high school degree, and 8 have a primary school degree.

(3) Crime tends to be organized and large-scale

First, gangsters and gangs commit many crimes, and the internal organization is relatively tight, with counterfeiting, sales, liaison and transportation all involved. There is a clear division of labor. This situation is common in the city. For example, from January 2006 to April 2009, the People's Procuratorate of Jing'an District accepted 19 suspects, and 17 of them committed the same crime, accounting for 89.4%.

Second, this type of crime tends to be organized and intelligent. At present, the production and sale of counterfeit goods is no longer limited to small workshops, but has become more organized and intelligent, gradually forming a professional division of labor. and one-stop service. In addition, criminals often use some professional technical means to make counterfeit goods more and more imitative, making it difficult for ordinary consumers to identify them, and also making it difficult to fight crime.

(4) It becomes more difficult to crack down on and investigate such crimes

First of all, because the places where counterfeiting is made and where counterfeiting is sold are often separated, counterfeiting factories are usually located in various provinces and cities. It is often difficult to find the source of counterfeit goods by simply investigating the place where counterfeit goods are sold, which brings great difficulties to the investigation and handling of such crimes. Only by intensifying the crackdown on storage areas and cracking down on fake storage warehouses can we seize a large number of goods that infringe on intellectual property rights. Secondly, criminal subjects have a relatively high degree of intelligence and are good at taking advantage of weak links in supervision to commit crimes. Many of these cases involve the use of the Internet to sell counterfeit goods and infringe on online copyrights. The emergence of cybercrime has also put forward higher requirements for evidence collection technology and timeliness. Finally, criminals often evade investigation and punishment by making false accounts or failing to make accounts. Even if they are caught, it will make it more difficult for the procuratorate to find out the entire business amount and illegal income.

(5) A higher proportion of suspended sentences and misdemeanors

Within the four-year and six-month statistics of the Jiading District People’s Procuratorate, there were 10 cases of rape and 14 people (including 2 cases in which 5 people changed their charges to the crime of selling counterfeit and substandard products) were prosecuted by the procuratorate and tried by the People's Court in accordance with the law. Among them, there were 10 cases in which 13 people, accounting for 93%, were sentenced to fixed-term imprisonment of less than 5 years and suspended probation. It can be seen that the court sentenced a higher proportion of suspended sentences and misdemeanors to such cases. The main reasons are as follows: first, the amount involved in the cases is relatively small. In some cases, it is difficult to ascertain the entire amount of illegal income. Secondly, the degree of harm to society is relatively small. Apart from selling counterfeit products to make high profits, criminals have not yet caused any serious harm, such as personal injury. Again, fully taking into account the criminal's guilty plea, a lighter sentence may be given where appropriate.

3. Analysis of problems encountered in case handling and legal application and their causes

(1) There are many difficult problems in legal application in cases of intellectual property infringement

Although the Criminal Law stipulates the criminal elements and penalty standards for intellectual property infringement cases, and the Supreme People's Court and the Supreme People's Procuratorate have also issued relevant judicial interpretations on the trial of intellectual property infringement crimes, in the actual case handling practice, the case situation is complex and there are many new problems. For example, judicial practice has different understandings of whether the persons involved in the case in an auxiliary position are recognized as criminals and how to deal with the problem, and there are also large differences in handling, which is not conducive to the fairness of the application of the law. Although Article 16 of the "Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Intellectual Property Infringement" stipulates: Knowing that others have committed crimes of intellectual property infringement, providing them with loans, funds, account numbers, invoices, certificates, licenses, or providing production , business premises or transportation, storage, import and export agency and other convenient conditions, assistance, etc., shall be punished as a criminal who commits the crime of infringement of intellectual property rights.

However, judging from the specific situation of judicial practice, some of these persons involved in auxiliary positions have not been included in the criminal procedure, some have not been approved for arrest, some have not been prosecuted, and some have not been convicted and sentenced by the court. For example, In the case of Tu selling goods with counterfeit registered trademarks, Xu knew that Tu was illegally operating counterfeit cigarettes and provided vehicles and transportation to earn freight. The public security agency requested the procuratorate to approve the arrest, but due to the circumstances of his helping behavior It was obviously minor, did not constitute a crime, and was not approved for arrest. The main reason for these problems in current judicial practice lies in the differences in understanding of "the circumstances of the crime are relatively minor" and "the circumstances are significantly minor".

In addition, case investigators have questions or disputes about the application of law in how to correctly grasp the elements of a crime and how to determine the amount involved, circumstances, consequences and other criteria for conviction and sentencing. For example, there are strong efforts to investigate and deal with violations of intellectual property rights, but very few cases are transferred to judicial organs and ultimately punished. The main reasons are the flexibility of the crime amount standard and the deviation in the understanding of conviction standards by various functional departments of the judicial and administrative organs. .

(2) Conviction and sentencing rules are not uniform, and penalties vary

The crime of trademark infringement overlaps with the crime of producing and selling counterfeit and inferior products, and the crime of illegal business operations. Although the "Interpretation on Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases of Producing and Selling Counterfeit and Substandard Products", "The Interpretation on Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases Producing and Selling Counterfeit and Substandard Drugs" and "On the Proposal of Handling Counterfeit and Substandard Tobacco Products, etc. "Minutes of the Symposium on Applicable Legal Issues in Criminal Cases" clearly clarifies that when the above-mentioned crimes overlap, "the conviction and punishment shall be in accordance with the provisions of the heavier punishment." However, judging from the judgments, there are still large differences in the characterization of such cases by judicial authorities.

Since the three crimes overlap mainly in cases of counterfeit cigarettes and counterfeit alcohol, and such cases often involve the seizure of counterfeit cigarettes and counterfeit alcohol on the spot when the criminal suspect is arrested, at this time, these Counterfeit cigarettes and wine are in a state that has not yet been sold. In addition, in addition to fake cigarettes and fake wine, the seized stolen goods are often mixed with real cigarettes and real wine. For example, in the case of Lin, the Tobacco Monopoly Bureau received a report and arrested Lin. On the spot, they seized more than 900 genuine cigarettes worth more than 30,000 yuan and more than 11,000 counterfeit cigarettes from the van driven by Lin and his residence. More than 530,000 yuan. The procuratorial organ believed that after a comprehensive comparison of the three charges, the one with the heavier punishment should be the crime of illegal business operations, but the court believed that the case should be charged with the crime of producing and selling counterfeit and inferior products. The focus of the dispute is: 1. When comparing the three crimes, whether the total amount of unsold counterfeit cigarettes should be divided by 3 first and then used as the basis for comparison; 2. There are both real cigarettes and counterfeit registered cigarettes in the same batch of goods. How to calculate the "sales amount" and "goods value" of cigarettes with a trademark; 3. If the cigarettes are identified as counterfeit registered trademarks and shoddy cigarettes, that is, counterfeit and shoddy cigarettes exist at the same time, is there a tendency to compare the three crimes? It can be seen that judicial authorities have different understandings and treatment methods on how to apply the law and relevant judicial interpretations to the sale of counterfeit and shoddy cigarettes.

(3) There is a large number of criminal and civil overlaps in cases of intellectual property infringement

Due to the rapid development of intellectual property and the complexity of intellectual property cases, legal provisions often lag behind reality. Intellectual property cases, especially the handling of criminal-civilian cases involving intellectual property rights, do not have special provisions in Chinese law. They can only be reviewed with reference to the regulations for handling criminal-civilian cases involving economic disputes and economic crimes. Therefore, there is great controversy in theoretical discussions and judicial practice on how to handle criminal-civilian cases involving intellectual property rights.

(4) The professional knowledge level of case handlers has not yet reached the case handling requirements

Intellectual property infringement cases have higher professional requirements for specific case handlers. In many specific cases, qualitative Whether it constitutes a crime of intellectual property infringement and whether it should be punished is still controversial in theory. At the same time, since most case handlers in the procuratorial organs have not learned relevant professional knowledge in intellectual property rights and have no practical experience in the professional issues involved in many types of intellectual property cases, sometimes case handlers are at a loss as to how to screen and fix evidence. .

IV. Research on Countermeasures to Combat Crimes of Infringement of Intellectual Property Rights

(1) Correctly apply the law and fight crimes in accordance with the law. When handling specific cases of crimes of infringement of intellectual property rights, we must strictly comply with the provisions of the Criminal Law Chapter 3, Section 7, and the relevant provisions of the Supreme People's Court and the Supreme People's Procuratorate's judicial interpretations on intellectual property infringement cases, correctly grasp the constituent elements of the crime, and accurately apply the standards for determination of amount, circumstances, consequences, etc. for conviction and sentencing. When handling intellectual property cases, especially criminal-civilian crossover cases, we should strictly follow the relevant provisions of the Criminal Procedure Law and the Civil Procedure Law, and follow the traditional handling mechanism of criminal-civilian crossover cases, that is, through criminal incidental civil litigation and two separate criminal-civilian litigation, etc. methods to resolve cross-criminal and civil cases involving intellectual property infringement.

(2) Innovate the case-handling mechanism to effectively ensure the quality and efficiency of the case

Crime cases of intellectual property infringement are highly professional and involve a wide range of knowledge fields, requiring both case-handling personnel to have rich experience Knowledge of criminal law, civil and commercial law, and professional skills in the collection, fixation, review and screening of relevant criminal evidence are also required. To this end, the Pudong New Area People's Procuratorate, in accordance with the Shanghai Municipal People's Procuratorate's requirements for intellectual property infringement cases to be tried by dedicated personnel and the frequent occurrence of intellectual property cases in Pudong New Area, has transferred a group of business backbones from the Public Prosecution Office to specialize in intellectual property crime cases. handle. The court also actively explores new mechanisms for the public prosecution department to intervene in cases of intellectual property infringement crimes to guide the investigation work in advance, and timely dispatch personnel to participate in case research, review of evidence, interrogation of criminal suspects or other evidence collection work to improve the accuracy of investigation and evidence collection. and pertinence. The above-mentioned measures adopt an innovative case-handling mechanism of "dedicated personnel, dedicated work, dedicated use", which has obvious effects on improving the professional quality of case-handling personnel, increasing the intensity of combating crime, and ensuring the quality and efficiency of cases.

Therefore, the procuratorial organs should put forward relatively practical plans based on the different situations and characteristics of each place. The procuratorial organs in various places should also communicate with each other, learn from the experience of handling similar or similar cases, and strive to combat intellectual property infringement. cases, effectively protecting the legitimate rights and interests of intellectual property rights holders.

(3) Learn professional knowledge and improve the quality of case handling

High-quality case handling personnel are the prerequisite for ensuring the quality of cases. Intellectual property cases cover a wide range of areas, involving both criminal and intellectual property aspects of civil and commercial law. At the same time, the case handlers also need to have a certain understanding of the characteristics of the brand itself. This interdisciplinary feature places higher requirements on the comprehensive quality of case handlers than other types of criminal cases. Cultivate business backbones who are familiar with intellectual property rights among case handlers, and strengthen training and learning in a targeted manner based on the characteristics of intellectual property infringement crimes in each district in practice. This will not only help combat intellectual property crimes, but also improve the efficiency and quality of case handling. It will also help enhance the business community’s confidence in the judicial authorities’ ability to protect their intellectual property rights through criminal means.

(4) Strengthen legal publicity and mobilize their own rights protection

The procuratorial organs must actively participate in and cooperate with relevant departments in publicity work on intellectual property protection. They must work with relevant departments through television, Mass media such as newspapers and the Internet, as well as the "4.26" World Intellectual Property Day, vigorously promote the knowledge of intellectual property protection and popularize the "Patent Law", "Trademark Law", "Copyright Law" and other laws and regulations, while taking into account the deterrent effect of criminal law, Punitive measures for infringement of intellectual property rights should also be publicized. The procuratorial organs can choose typical cases to explain the law with cases to deter intellectual property violations and criminal activities, educate the public and enterprises to respect intellectual property rights and consciously abide by the law; at the same time, they must publicize and mobilize to protect their legitimate rights and interests through reporting and complaints. The procuratorial organs can also publicize it by going to communities and units, etc., especially the return visit system for enterprises and units that have been infringed, to follow up on cases of intellectual property infringement, listen to the opinions of enterprises on the results of case handling, and strengthen the legal system. Promotion and protection efforts.

(5) Enhance coordination and communication to form a joint force in combating

At present, there is a gap between the scope and extent of criminal protection of intellectual property rights in my country and developed countries in the world. Therefore, various judicial Agencies, administrative law enforcement departments and economic management departments must effectively play their respective functions and must not only divide labor but also cooperate. The procuratorial organs must strengthen contact and communication with the people's courts and public security organs, promptly study specific issues such as legal application, nature identification, evidence specifications and other issues encountered in handling cases, strive for mutual support in work, and improve case handling and litigation efficiency. At the same time, we must actively strengthen cooperation with administrative law enforcement departments and economic management departments such as industry and commerce, customs, quality inspection, drug supervision, copyright, and patents, and closely cooperate in information communication, case transfer, investigation and evidence collection, etc., to achieve administrative law enforcement and criminal law enforcement. effective connection, promote the rational use of law enforcement resources, and form a joint force to combat intellectual property infringement crimes.

Source: Huanhunting Business Investigation Network/