Research On The Choice-of-law For The Cases Of Selling Pirate CDs

This dissertation consists of five sections, the briefs of each section are listed in the following:The first section proposed the judicial question:how to judge the case ’Selling Pirate CDs by Zhang Yong’? One part is how to deal with the difficult position when judge the case’Selling Pirate CDs by Zhang Yong’? Firstly, the basics of the case are briefed:After the court of Leshan city’s central district made the first judgement of no guilty, the prosecuting organization proposed a counter appeal, then the court of Leshan city’s central district made four judgement opinions. The second part is the choice-of-law when judge the cases of selling pirate CDs, including the criminal of violating literary property defined by the clause 217 of the Criminal Law, the criminal of selling replicas with violating copyrights defined by the clause 218 of the Criminal Law, and the criminal of illegal operating defined by the clause 225 of the Criminal Law.The second section is the origin of the argument of the case:the argument of the involved standards of the Criminal Law. One argument is between the clause 217 and clause 218 of the Criminal Law. There’re opinions of ’yes’ and ’no’. The opinion of ’yes’ said that the publishing and selling are concurrent, so do the illegal publishing and the illegal selling, which results in law clauses’ concurrence. The opinion of’no’said that the publishing consists of publish, wholesale, retail, rental and exhibit selling, only single behavior of the selling can’t be considered as publishing, so there’s no clauses concurrence. The second argument is among clause 217, clause 218 and clause 225, there’s opinions of ’yes’ and ’no’. According to the procedure of legislation, the opinion of’yes’thinks that relationship between selling replicas with violating copyrights and illegal operating belongs to the relationship between specific law and common law, so the behavior of selling replicas with violating copyrights is a behavior of illegal operating. The opinion of’no’thinks that the criminal of violating literary property invades literary property, while the criminal of illegal operating invades the licensed operating rights, these two criminals are not concurrent in the criminal object and behavior.The third section is the explanation the case:my opinion on the related Criminal Law’s standards. One part is the argument about the relationship between the clause 217 and the clause 218 of the Criminal Law. The problem of the opinion of’yes’is that:if the concurrence exists, the criminal of selling replicas with violating copyrights shall be blank placed according to the judicature explanation. This results in the mixing up of the criminal suspects of two different criminals, meanwhile mixing up of publishing and selling. The opinion of ’no’ not considered the selling behavior as part of publish of the criminal of violating literary property. The research on the concurrence of two clauses firstly involved the understanding of the’replicate publish’ of the clause 217. The meaning of ’replicate publish’ is ’replicate and publish’, not ’replicate or publish’. The relationship between ’replicate publish’ of the clause 217 and ’selling’ of the clause 218 should be distinguished. The ’publish’ including sell and donation, in which ’sell’ is selling, and the selling includes wholesale and retail. The ’publish’ and ’selling’ have connections and differences, the behavior of ’selling’ can be considered as one behavior of ’publish’. The differences between two criminals exist in the criminal subjects, behaviors and objects, which result in a conclusion of no concurrence for two clauses. The relationship between two criminals is that one is first invasion of rights and second invasion of rights. Another aspect is the argument about the clause 217, clause 218 and clause 225 of the Criminal Law. The problem of the opinion of’yes’is that:if admit the concurrence, then the criminal of selling replica with violating copyrights is blank defined by the Criminal Law, which conflicts with rule of fitness between criminal and punishment; Another problem is that this admission conflicts with the rule of the punishing according to the criminal, which enlarges the item 4 of the clause 225 of the Criminal Law, making the illegal operating as an wrapped criminal. The problem of the opinion of’no’is firstly that it didn’t clearly point out the essence of the illegal operating criminal is aiming at the system foundation of the market entrance permission. The judgement of the illegal operating criminal primarily lies on whether the trade of the subject is legitimate. Secondly, if the trade itself is legitimate, whether the license has been permitted is then considered. These two steps go forward one by one. As the clauses 217,218 and 225 differ on criminal objects and behaviors, there’s no clauses concurrence.The forth section is the solution of the case:The judgment suggestions for the case’Selling Pirate CDs by Zhang Yong’. According to the opinion of ’no’, Zhang Yong had selling behavior alone, it can be considered as one behavior of publish. But this do not match the condition of the criminal subject of the criminal of violating literary property, it doesn’t constitute the criminal of violating literary property; there’s also no evidence proving the number of illegal earnings, which also doesn’t constitute the criminal of violating literary property. According the above all, Zhang Yong is not guilty. The responses for the rest three judgement opinions are also made separately, their mistakes are also pointed out.The fifth section is supplement, which explains some related problems. One part is the comment on the cases of Gu Randi, Zhou, Ge Zhunyin, Ge Huifang and Ling Yongchao, which have been mentioned before. The second part is the improvement of the explanation of the criminal of violating literary property. It analyses the improper aspects of the explanation of’replicate publish’in the clause 217 by the highest people’s court, which results in chaos when dealing the related cases in practices. The modification of’replicate and publish’is needed. The third part is the clarification of the modification and improvement should be done for the legislation and judicial explanation for the criminal of violating literary property.The main contribution of the dissertation is that it points out the present four theories dealing with selling pirate CDs all fails to interpret whether there’s concurrence exists among three clauses of the Criminal Law. The problems of these theories are presented, and no concurrence among three clauses is stated. To correctly guide the judicial practice, the improvement and modification should be done for the legislation and judicial explanation.Due to my limitation on the attainments of the jurisprudence, it’s hardly to elaborate all aspects of the theme. Any criticism and suggestion are welcomed.