The Criticism And Reconstruction Of The Judicial Interpretation Of Illegal Management Of The Crime Of Counterfeiting Registered Trademarks

The huge economic value of intellectual property has become increasingly apparent as the continuous developments of our social economies thus leading to the improvement of legal protection on intellectual property rights. The crime of counterfeiting registered trademarks is one of most important parts of the crimes against intellectual property. But there are no clear legal definition upon the calculation standards of the amount of the crime,the sentencing guidelines or other law applicable problems until 2004 when the two judicial interpretations jointly issued by the Supreme Court and the Supreme Procuratorate and the third one promulgated by the three authorities came into force changing the current situation in judicial practice. The three set of judicial interpretation are called as judicial interpretations on “Illegal management” in this article.Although the implementation of judicial interpretations on “Illegal management” have significantly contributed to the legal attacks against trademark crimes and the correct application of the crime of counterfeiting registered trademarks,we can not still deny the facts that many problems have been exposed during the process such as the contradicting standards upon the calculation of the amount and the conviction of the crime.this article is going to pinpoint the practical problems regarding the judicial interpretations on “Illegal management” from both theoretical and practical considerations in order to provide the best reconstructing suggestions.This thesis consists of the following three parts. Chapter 1 discusses the connotation and defects of the three judicial interpretations,expounding mainly the origination and development of the concept of “illegal business transaction”,enumerating both the positive effects and the disputed issues such as the calculation the amount of the crime and the sentencing guidelines in the legal practice.Chapter 2 renders further examinations on the judicial interpretations basing on the practical problems in Chapter 1.Chapter 3 proposes a reconstruction plan on the three judicial interpretations which includes the reconfirmation of the calculation standards and criminal patterns of trademark crimes,the differentiation between the crime and the crime of manufacturing and selling shoddy commodities and other extending issues resulting from the reconstruction.This thesis then reaches the following conclusions that the criminal amount of the crime of counterfeiting registered trademarks should be measured by sales amount, offenders not yet selling infringement products considered as attempted crime of counterfeiting registered trademarks and the amount of unsold infringement products measured by the value of goods,i.e.the actual average sales price when there are actual sales and the tag price when not or the identification price identified by price certifying agencies basing on factors such as the objective value of the goods if neither the actual average sales price nor the tag price can be identified.