Differences of understanding between judicial organs in trademark infringement crimes 1

Abstract At present, there are serious differences of understanding between judicial organs in the process of handling criminal cases of trademark infringement.

based on the analysis of trademark infringement crimes handled by the procuratorial organs in a certain district of Beijing from 21 to 213, this paper analyzes the reasons for the differences in the understanding of evidence admissibility and qualitative grasp of judicial organs, and simply puts forward the idea of resolving mechanism.

key words

1. overview

at present, the crime of trademark infringement in China is very serious, and it is getting worse and worse.

the crime of infringing trademark rights not only infringes the trademark exclusive right of the obligee and the national trademark management system, but also harms the legitimate rights and interests of consumers, seriously interfering with and impacting China's market economic order and international economic status.

based on theory, the theoretical research of criminal law on trademark infringement crime is not a key field.

The legal provisions involve many crimes, such as the crime of producing and selling fake and inferior commodities, the crime of infringing intellectual property rights, the crime of illegal business operation, etc., and there are many judicial interpretations, and the ability to clearly guide practice is insufficient.

Based on practice, in recent years, the crime of infringing trademark rights is in a rapidly rising stage, the criminal means are refurbished, and the infringing products are widely used.

in view of the stricter requirements of the new criminal procedure law on the standard of evidence, judicial organs around the country are in the exploration stage in terms of admissibility and qualitative grasp of evidence to crack down on trademark infringement crimes.

it is precisely because of the weakness of theory and practice that there are many confusions and differences in the process of handling criminal cases of trademark infringement by judicial organs, which affects the handling of cases to some extent.

second, there are differences in the judicial organs' handling of trademark infringement crimes

(1) the standard of evidence is not uniform

1. There are differences in the determination of the selling price of commodities

From 21 to 213, the investigation organs withdrew 28 cases for review and prosecution because of the price appraisal of the commodities involved, and there were two price appraisals in such cases.

the first price appraisal is based on the intermediate market price of the infringed product, and the second price appraisal is based on the actual sales price.

two times of price fixing crossed the crime and non-crime, that is, when it was based on the actual sales price, it failed to meet the prosecution standard of crime (attempted).

2. The investigation organ's evidence collection is not standardized

(1) The evidence fixation is not timely and comprehensive.

among the 31 people in 1 cases who decided not to prosecute in doubt, there were 4 cases in which 7 people were unable to find the buyer to verify the sales price in the later period, which led to doubts about the "illegal business amount" and "sales amount".

This is directly related to the failure of the investigation organ to collect and collect relevant evidence in time during the investigation and evidence collection process.

(2) The appraisal opinions are not standardized.

First, because the infringement appraisal is not standardized and the proof is weak, the suspect raises objections to the appraisal, and the price appraisal is not based on the sales price.

Second, the criminal suspect and the defendant object that the subject of appraisal is an infringing unit.

in practice, in most cases, the infringed unit provides documents to prove that the products involved are infringing, which is disputed.

(3) The illegal evidence collection by the investigation organ leads to the exclusion of key evidence according to law.

For example, in the case of Zhu Moumou and others selling automobile parts with counterfeit registered trademarks, the criminal suspect refused to sign the seizure list, and the investigation organ moved the seizure place without authorization during the case review, and the relevant video recording was not fixed, and there was no witness from the criminal suspect or witness, which led to doubts about whether the key evidence was seized or not, and could not make a reasonable explanation to make corrections, and was finally ruled out according to law, and the whole case was in doubt.

(II) There are differences in the application of charges

From 21 to 213, the procuratorial organ changed the nature of the investigation organ in 9 cases with 21 people.

There were 8 people in 2 cases in which the procuratorial organ was changed by the judicial organ.

it is worth mentioning that among the eight people in two cases in which the procuratorial organs were changed by the judicial organs, all of them were changed by the judicial organs after the procuratorial organs changed the nature of the investigative organs.

The procuratorial organ changed its nature for the consideration of a felony.

The prosecution believes that the goods with counterfeit registered trademarks in these two cases are also fake and inferior products. At this time, the suspects not only constitute the crime of counterfeiting trademarks or selling goods with counterfeit registered trademarks, but also constitute the crime of producing or selling fake and inferior products. If they are convicted of imaginative joinder, they should be punished as a felony according to judicial interpretation.

However, this has not been recognized by the judicial organs. The judicial organs believe that the identification of fake and inferior products requires the identification of the goods involved by the relevant departments, and there is no identification of fake and inferior products in these two cases, so only the crime of counterfeiting registered goods and the crime of selling goods with counterfeit registered trademarks are established.

III. Reasons for the divergence of judicial organs

There are objective reasons for the divergence of judicial organs in handling trademark infringement cases, as well as subjective problems such as the operational deviation of investigative organs in the use of investigation rights, procuratorial organs in the review and prosecution rights and legal supervision rights, and judicial organs in the use of judicial rights.

(1) the level of application of the law

1. There are many judicial interpretations, which are scattered in the judicial interpretations of the crime of producing and selling fake and inferior commodities, the crime of infringing intellectual property rights, and the crime of illegal business operations

Articles 213 to 215 of the Criminal Law of the People's Republic of China stipulate the main crimes of infringing the exclusive right to use trademarks, including the crime of counterfeiting registered trademarks, the crime of selling commodities with counterfeit registered trademarks, and illegal manufacturing.

although there are fewer charges, judicial interpretations involving trademark infringement have been issued many times.

For example, on November 2, 24, the Supreme People's Judicial Organ and the Supreme People's Procuratorate issued the Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights; Interpretation of the Supreme People's Judicial Organ and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights (II) on April 5, 27; On January 1th, 211, Opinions of the Investigation Department of the Supreme People's Judicial Organ and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Infringement of Intellectual Property Rights, etc.

compared with other crimes, the crime in the field of trademark infringement is abstract and too specialized in terms of its charges and constitution.

this situation has objectively brought some difficulties to the investigators of the public security inspection law in grasping the nature of the case.

2. In the case of trademark infringement, the concurrence of articles is too concentrated, which is difficult to grasp in practice.

In the specific provisions of the Criminal Law, the concurrence of articles on the crime of producing and selling fake and inferior commodities has been too concentrated.

"Except for this section, there is no such concentration in the criminal law of our country, which is similar to the concurrence of laws and articles in this section." In the case of trademark infringement, the crime of trademark infringement and the crime of producing and selling fake and inferior commodities compete again. Obviously, the qualitative grasp is too complicated.

as far as criminal law theory is concerned, the concurrence of this article includes concurrence and cross concurrence, which is profound and controversial.

therefore, objectively, there are great differences in the handling of trademark infringement cases in the public prosecution law.

3. The criminal law is obviously mild, and the felony is lightly sentenced

Nowadays, there is a gradual and in-depth process in the understanding and understanding of trademark infringement crimes in legislation and judicature.

traditionally, the protection of traditional property rights and personal rights is much more important than the protection of intellectual property rights such as trademark rights.

The setting of sentencing range in criminal law is obviously mild.

in addition, limited by the collection, fixation and acceptance of evidence in trademark infringement cases, it is usually considered to apply misdemeanor charges for qualitative punishment, resulting in the consequences of light punishment for felony.

(2) the level of factual evidence

1. It is difficult to obtain evidence of trademark infringement cases

According to relevant statistics, the number of criminal cases of trademark infringement by scientific and technological means such as the Internet has risen sharply, which makes the criminal behavior have obvious characteristics of "infringement in different places" and has a large geographical span.

The evidence of this kind of case is difficult to search, with strong concealment, and it is difficult to investigate.

moreover, the evidence of trademark infringement cases is strict. therefore, in actual cases, the number of cases to be sold is the evidence basis, and the attempted conviction is punished, which has a low crackdown.

2. Cases of trademark infringement are highly professional and technical, and there are differences in the admissibility of evidence in the public prosecution law.

Such cases mostly involve professional knowledge in trademark, e-commerce, logistics, judicial expertise and so on.

The investigators involved in the investigation, prosecution and trial of a case are required to have a high professional level.

In combination with judicial practice, there are obvious differences between reality and requirements, resulting in differences in the admissibility of evidence.

3. The convergence of execution is not yet mature

Article 15 of the revised new Criminal Procedure Law stipulates that the evidence materials such as physical evidence and documentary evidence collected by administrative organs in administrative law enforcement can be used as evidence after verification by judicial organs.

This has undoubtedly promoted the handling of trademark infringement cases by the Public Prosecution Law.

However, the revised Article 15 also has some shortcomings. Are the audio and video materials collected by the administrative organs, the appraisal conclusions and the punishment conclusions made by the administrative organs among the "evidence materials such as physical evidence and documentary evidence collected in administrative law enforcement" evidence that can be adopted by the investigation and judicial organs? The amendment does not specify.

If the legislation can't make it clear that the evidence can't be used in criminal proceedings, it may cause confusion in practice.

(3) At the judicial officer level

Different functions of public security and procuratorial law lead to different law enforcement concepts, which leads to differences in handling cases.

China's constitution entrusts public security organs with different functions and powers, which objectively leads to the differences in law enforcement concepts of public security organs.

as far as the characteristics of the judicial subject are concerned, there is a contradiction between the sociality of the judicial officer subject and the sanctity of the judicial value, and there is also a contradiction between the individual rationality and irrationality of the judicial subject.

Therefore, the existence of differences on this kind of public security law is objective and in line with the law.

iv. Mechanism for resolving judicial differences in trademark infringement crimes

(1) Correctly understanding differences and establishing correct judicial concepts

There are objective reasons for the differences in judicial organs, such as the complexity of legislation and the differences in the positioning of judicial shutdown functions.

In particular, the crime of trademark infringement is professional and technical.

it is unrealistic to emphasize the elimination of differences blindly and ignore the characteristics of individual cases, and there may be rigidity in judicial trial.

Therefore, the judicial organs should correctly understand the differences, deeply analyze the reasons for the differences, become more and more mature at the technical level of law enforcement, seek common ground while reserving differences in criminal law theory and practice, and establish a correct judicial concept.

(II) Unifying the standard of evidence and establishing legal authority

Judicial practice has proved that nowadays, the collection, acceptance, nature determination and sentencing of evidence for trademark infringement crimes mostly depend on the discretion of the case handlers of judicial organs.

The rapid growth of trademark infringement crimes has not matched the correct application of justice, and it is urgent to give relatively uniform standards by legislation and justice.

(3) Improve the professional quality of judicial personnel and update the legal concept

In order to cope with the professionalism of trademark infringement crimes, it is necessary to improve the professional quality of judicial personnel, promote judicial personnel to accept modern criminal law and procedural law ideas, and better adapt to the modern legal thinking mode to know how to handle cases.

(4) Strengthen legal supervision to achieve mutual restraint

Further coordinate the relationship between judicial organs of public security inspection law, distribute rights more carefully and reasonably under the condition of clarifying the differences in the positioning of judicial shutdown functions, establish effective communication, coordination and supervision mechanisms between judicial organs, deepen legal supervision and truly achieve mutual restraint.

Note:

① All the data involved in this article are from the analysis and statistics of trademark infringement cases handled by a district procuratorate in Beijing from 21 to 213.

② Wang Shuo. On the application principle of concurrence of articles in China's criminal law. Series of legal theories. 211(2).

③ It is full. A brief analysis of the modification of the evidence system by the new criminal procedure law. Economy and law. 212(7).

④ Zhu Xiaoqiong. The conflict and harmony between the value of law and the personality of judges. The published information is unknown.

From 21 to 212, the crime of trademark infringement in Area C of City B gradually showed a series of characteristics, such as increasing the proportion of fake sales, various infringement methods, more hidden forms, increasingly huge amount, obvious regional characteristics, networked sales, internationalization and accompanying duty crimes.

At present, the judicial and administrative organs should strengthen their work from the aspects of strengthening the popularization of law, enhancing the intensity of supervision, increasing the level of cooperation, and setting up professional teams to enhance the level of trademark protection.

[Keywords] Intellectual property rights; Trademark right; Characteristics of crime; Empirical analysis

Area C of City B has gathered three functional areas, namely CBD, Olympic Games and Electronic City, occupying half of the six high-end industrial functional areas in the city, with 114 Fortune 5 enterprises, countless other large and medium-sized enterprises at home and abroad, and the scale of cultural and creative industries is also expanding.

as the core position of area c of city b in the business, finance and culture of the capital is becoming more and more obvious, the protection of trademark rights in the area is also facing more severe challenges.

from 21 to 212, the procuratorate of district c of city b * * * handled 95 criminal cases of trademark infringement with 22 people.

overall, criminal cases of trademark infringement in area c of city b have shown an exponential growth trend in the past three years.

1. Characteristics of trademark infringement crimes in area C of B city in recent years

Through the analysis of criminal cases of trademark infringement in area C of B city in recent years, this kind of crimes gradually presents the following characteristics:

(1) The key crimes are very prominent, and the proportion of "selling fake goods" is increasing

The criminal cases of trademark infringement accepted by the procuratorate in area C of B city from 21 to 212 include the crime of counterfeiting registered trademarks.

Among them, the crime of selling goods with counterfeit registered trademarks accounts for about 78% of the total number of cases, and the crime of counterfeiting registered trademarks accounts for about 19%.

It can be seen that the crime of counterfeiting registered trademarks and the crime of selling goods with counterfeit registered trademarks are the key crimes applicable to the crime of trademark infringement in Area C of City B..

however, in recent years, the proportion of "cancellation of leave" has increased significantly, which has become the main reason for the rapid growth of the overall number of criminal cases of trademark infringement in Area C of City B..

(II) There are many kinds of infringing products, and the means of infringement are increasingly diverse

In terms of infringing products, they can be roughly divided into five categories: food and health care, home improvement and cleaning, luggage and clothing, sports equipment and auto parts.

brand-name luggage and clothing is still the focus of trademark infringement crimes.