| This thesis is based on the relationship between criminal protection and other legal protections on intellectual property(hereinafter “IP”). The author uses theoretical analysis, empirical research and comparative analysis, comprehensively analyzing the conflict and coordination among “criminal, civil and administrative ” IP protection. The main points are as follows: The first issue is on basic concept. What is IP? What is the legal protection on IP? What is the criminal protection on IP? The second issue is on value orientation. Is it necessary to apply criminal protection to IP and how to make its protection standard? What are the requirements and expectations of international society and domestic development towards our criminal protection? The third issue is how do “criminal, civil and administrative” IP protection conflict and how to coordinate them? Theoretically, “criminal, civil and administrative” IP protection work together as a whole while in practice they do not. Therefore, the author collected the official data from the China Intellectual Property Office and the Supreme Court in the last ten years; searched various domestic and foreign legislation, and international treaties; collected more than one hundred judgments from “Chinalawinfo.com” and “court.gov.cn”; made more than 20 charts, trying to analyize from theory and practice to comprehensively present the situation, conflict and coordination of China's IP protection. Besides the introduction, this paper consists of five chapters, about 150,000 words(including the notes).Chapter one introduces the basic concept of IP, IP protection, and the basic path of IP protection in China. The first section introduces the concept and basic features of intellectual property. There are two ways to define IP, one is the “listing way”, and the other is the “summary way”. Theoretically speaking, the “listing way” is more in line with the legal characteristics of IP. Practically speaking, “criminal, civil and administrative” legislation in China all use “listing way” to define IP by listing Copyright and related rights, Trademarks, Patent and trade secret as IP to protect.In this paper, without specific reference, IP stands for These four types of sub-rights. The basic characteristics of IP include the natures of non material, statutory, proprietary, regional, and time limit, etc. The second section describes the infringement and protection on IP. China's legislation makes a clear list of all kinds of IP infringement, most of them are listed by Civil law, and some are listed by administrative and criminal law. Where there is an infringement, there is an anti-infringement. There are three protecting ways for IP, which are public power relief(legal protection), private relief(personal protection), and civil relief(social protection). The third section exclusively discusses the IP legal protection, including the necessity of IP legal protection, the general situation of international IP protection and the domestic IP protection in recent ten years.Chapter two discusses the development of criminal IP protection. The first section is about the criminal IP protection in foreign countries, which introduces the relevant provisions of developed countries and international treaties. The second section is about the criminal protection of IP in our country, which is mainly reflected in two aspects: the increasingly severe legislation and the constantly innovative judicial practice. The third section is about the necessity of IP criminal protection, which is determined by the characteristics of IP, the characteristics of IP crimes and the characteristics of the criminal law. The fourth section is about the internationalization of criminal IP protection, which is influenced by the politics and economy, the cultural tradition and the legal system. The fifth section is on the localization of criminal IP protection. In the localization process we should adhere to three principles, i.e., fulfillment of international obligations, priority to national interests, and ultima ratio of penalty.Chapter Three discusses the conflict among “criminal, civil and administrative” IP protection on macro level, which plays a connecting role in the structure. This chapter not only deepens chapter two, but also does theoretical groundwork for chapter four and chapter five. The first section points out that in addition to the IP crimes, conflict of law is also prevalent on other crimes, which is mainly reflected in four aspects: scope of intervention, legislative standard, application, power allocation. The second and the third section turn back to IP issue, to discuss the value conflict in “criminal, civil, and administrative”IP protection. Among them, the second section is about the conflict between judicial power and administrative power, the third section discusses the conflict between public right and private right.Chapter Four discusses the specific conflict between criminal & civil IP protection and its coordination. The first section takes copyright crime as an example to discuss the conflict in the legal text.In some criminal judicial interpretation, it interprets some legal terms of copyright crimes inconsistent with the original legislative intent of the criminal law, which makes the definition of those legal terms in criminal law different from civil law. The author agrees that a legal term can have its different criminal and civil definition, but this difference should be done by legislation, not by judicial interpretation. Judicial interpretaion cannot twist the original legislative intent of criminal law. The second section takes infringement on trade secret as an example to elaborate the conflict between criminal and civil judicial recognition. For example, regarding to the question whether a criminal can “negligently” infringes a trade secret, there are different opinions among scholars; and as to the standard of conviction and sentencing, judicial practice is not consistent as well. Contrary to criminal and civil inconsistence on copyright crime, criminal legislation and judgment are excessively rely on civil legislation. The author thinks that criminal legislation could set its own standard to solve the problem. The third section takes the procedure application in trade secret crime cases as an example to describe the conflict between criminal procedure and civil procedure in practice. The author believes that as to IP cases mixed with criminal and civil issues, “civil procedure prior to criminal procedure” is more reasonable. However, in the existing “criminal procedure prior to civil procedure” framework, we can only make improvement on “criminal procedure first”.Chapter Four discusses the specific conflict between criminal & administrative IP protection and its coordination. The first section describes the substantive legal conflict and coordination between criminal and administrative IP protection. The substantive legal conflict is mainly reflected on three aspects: the legislative authority, the legal recognition and the effect of evidence; the main reasons for the conflict are that the criminal legislation depends on the administrative legislation, and the criminal recognition depends on the administrative law enforcement. What shall we do is changing the attitude of this “dependence” into “reference”, and insisting on the independence of criminal justice. The second section describes the procedural conflict and coordination between criminal and administrative IP protection. The present situation of procedural conflict is embodied in the problems such as low criminal transfer rate and using administrative punishment to substitute criminal punishment. It's mainly due to the messy legal basis, the over high transfer threshold, the difficulty of evidence transformation, the lack of cooperation and supervision, etc. As reactions, we need to unify the legal basis, standardize the criminal case registration, strengthen evidence transformation, and improve the cooperation and supervision. |
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