Studies On Intellectual Property Crime In New Era

Industrial economy era gave birth to intellectual property rights~3 while knowledge economy era gives opportunity for the development of intellectual property right.~4 The protection on intellectual property right has related to the upgrade of nation's creative capacity as well as the development potentiality. Therefore, all nations, on one side, take measures on the areas of policy, law and fiscal to cultivate the development of the technological creation, on the other side, devoted to preventing and controlling intellectual property crime. After decades of development, Chinese law system concerning the intellectual property law, to some extent, is quite complete, the arrangement of agencies is quite reasonable and what achieves in the large-scale regulation actions is rather remarkable. Meanwhile, there are several questions: how to improve the law system to confirm to the new requirements in fighting against the ever-developing crime? How to achieve collaboration between criminal sector and administrative sector? How to improve the manner of law enforcement? How to draw experience from foreign countries to build the existing prevention and control system with internationalization as a characteristic. For the special ideology and exploration in preventing and controlling the intellectual property crime, the settlement of these problems needs unique ways.With comparison as the main method, this article can be divided into 5 parts:"the concept of intellectual property crime" , "comparison between intellectual property crime,normal property crime and illegal competition crime", "comparison between the different intellectual property crimes","comparison between the prevention and control systems at the present and the past", "comparison between the prevention and control systems at home and abroad".In the first section, the intellectual property crimes contained separately in criminal law area and criminology area are compared. Due to the differences in the research purposes in these two areas, the criminology has a unique object and a special method is in need, that is, positive method as well as contrastive analysis are beneficial in research.In the second section, appearance and measures on prevention and control of intellectual property crime ,illeagal competition crime and normal property crime are compared and the conclusion is drawn as follows: to improve the prevention and control system, should (1) apply the temper criminal policy with mercy; (2)bring the unfair competition law to the full play;( 3)emphasis on private prosecution mode; (4)cultivate better macro environment guided by human-oriented ideology, for instance, improve the moral standards of the mass, modify the law enforcement ideology, wipe out the"vacuum zone"in the social management, create better atmosphere in community.The third section is about the identical points and different points of trademark right crime, patent right crime, copyright crime and commercial secret crime in appearance as well as in prevention and control system from which measures for improvement(the common ones and unique ones for crimes separately ) have been put forward .In the fourth section, the measures to improve the prevention and control system at the present stage are brought out with the development trend of crime, comparison between the law systems/judicial practice/law enforcement at the present and the past as cutting point, for example, this essay has some suggestions on the standards for committing an intellectual property crime, application of qualification penalty, the improvement for arrangement of agencies, the more flexible and effective use of legal resources ,the set-up of long-term mechanism and the application of technical prevention and control.The fifth section is about the comparison on law-making ideology, law-making state, regulation of criminal law, agency settlement, policy in China and U.S. with the bilateral intellectual property disputes in 2007 as a cutting point and the conclusion that the ideology, policy, law-making, judicial practice, law enforcement, international collaboration in the existing prevention and control system should be reformed can be drawn.In conclusion, with research in academic area, appearance and practice at the present and the past as well as the experience at home and abroad, this essay analyzes the blemish of the existing prevention and control system and then puts forward the suggestions grounded on the national situation and with an eye on the international situation with a hope to provide some reference to law-making agency and other relevant ones, thus contributing to the improvement of the intellectual property protection system in China.