The Criminal Protection Of Intellectual Property

In the 21st century intellectual property is one of the extremely important factors of production and wealth of resources for all the countries in the world. It is of great importance to protect intellectual property, especially internationally, which means a lot for China's economic development and the integration with the world economy and technology. However, for the current judicial practice in China, the related criminal law and judicial interpretation of intellectual property is still less-developed, compared with the developed countries in the world. With the basis of concepts and crime constitution and the representativeness of the crimes of infringement of copyright and trade secrets, the paper analyzes the current situation of China's criminal protection of intellectual property, explores the legislative and the judicial interpretation of criminal direction, and promotes the integration with international intellectual property protection measures.Generalized intellectual property is referred to the legal rights people own based on their economic, technological, and cultural intellectual achievement according to law. In the narrow sense intellectual property is specific for the intellectual achievements achieved in creative work and business activities according to laws. Infringement of intellectual property crime refers to violations of the law of Intellectual Property, which, in serious circumstances, destroy the order of socialist market economy, and therefore should be subject to penalty. There are two representatives of crimes of infringement of intellectual property:infringement of copyright and infringement of trade secrets. When identifying the crime of infringement of copyright, it must be out of direct intention, and have profit-making purposes. In practice, for the infringer who makes some changes on the basis of the original work to reproduce and distribute, investigation should be focused on whether the modified work is creative. For the crime of infringement of copyright, I suggest cancelling "profit" as the constitution element of copyright infringement, combining legislative proposals to the Penal Code with specific laws, expanding the scope of crime constitution of infringement of copyright and reinforcing the executive force of punishment. As for infringement of trade secrets, we should pay attention to the subjective aspects, including direct and indirect intention.Indentifying trade secrets, we need to grasp four characteristics. The loss that trade secrets cause the owners should only be limited to the loss of economic benefits. When calculating the "loss", first consider the loss that the trade secrets owners suffer. In the case that it is difficult to directly identify the loss, consider the profits infringers obtain. For the legislative proposals of violating commercial secrets, I suggest making sure the concepts and standards of infringement of trade secrets, distributing the types of infringement of trade secrets Penalty, reinforcing the executive force of penalties and adding the crime of economic espionage.In the current stage, China does not have full-rounded laws for the protection of intellectual property, which needs further improvement. Public security offices are in charge of the investigation of prosecution cases of infringement of intellectual property as well as private prosecution cases transferred from prosecution cases. Establish investigation assistance system, and a special criminal investigator from the State Intellectual Property Management department can work with the Public Security authorities to investigate cases. To ensure the quality of the trial of IPR cases, I suggest establishing specialized IP court which is formed by a group of civil and criminal judges with professional knowledge and trial experience to work together on civil, criminal and administrative intellectual property cases.In addition, set up expert witnesses system to assistant and guide the law enforcement agencies in the investigation and prosecution, court interpretation of the relevant professional issues, and accept the prosecution and questioning of both sides and the court.