The Study Of Sentencing In Infringement Of Intellectual Property Crime

With the development of China's economy and society,intellectual property offense becomes more frequent.Therefore,the amendment of Criminal Law of the PRC to protect intellectual property seems extremely urgent.However,due to the features of intellectual property offense and the special judicial conditions in China,when dealing with those crimes based on criminal amount or dual system,the problem of determining criminal amount under the circumstance that attempted and accomplished are coexisting is generated.At present,since the criminal law and judicial interpretation of the provisions of the existence of the problem are not clear,when dealing with those attempted and accomplished crimes,sentencing methods and the interpretation of judicial personnel of the judicial treatmentmay cause expand discretion,which may lead to light sentencing or heavy sentencing.Right now,with the development of intellectual property,if intellectual property offense cannot be solved properly,it will greatly hinder the development of China's economy and society.The frequent occurrenceof light sentencing or heavy sentencing will inevitably lead to the parties feel doubtful and dissatisfactory about this decision.This results not only won't strike crimes effectively but also won't affect the authority of the law in China.Based on all the reasons listed above,enacting a logical method to determine criminal amount of intellectual property offenses is necessary.Lots of scholars put forward different methods to solve this problem,while these methods are controversial,because scholars cannot explain “attempted and accomplished” in juridical practice.There are many different situations of “attempted and accomplished” in judicial experience,and existing methods can only solve some of these problems but are not generally accepted.And because of the deviation of the angle of the problem analysis,this might result in many views which are different from the basic theory of China's criminal law.Therefore,although there are merits in the current calculation method,they are not suitable for all the crimes.In this article,there are four part in following,which are basied on the analysis of the case of Luo to conduct analysis of the criminal amount when the accomplished crime and attempted crime exist together.The first part is the case and point.It is a brief introduction of the case of Luo and several different opinion on the measure of penalty in the juridical practiceThe second part is the jurisprudence analysis of the disputed problem.Specifically it can be divided into three sections.First is the theoretical basis of crimine of amount and related issues.From analyzing the Criminal policy and judicial present situation,this section not only introduce the theoretical basis of crimine of amount and discuss it's rationality,but also analyze specific questions,which is existing in the calculation method of criminal amount under the “dual-track approach”;Next is evaluate and analyze of the judicial interpretation provisions and academic point of view.This section analyze two common calculation methods in juridical practice and four different point made by academic circles;Lsat is methods of indentification of criminal amount under the situation that accomplished crime and attempted crime exist together in infringement of intellectual property crime.In this section,we analyze the accomplished and attempted from the perspective of Imagine competition,and the conclude relevant treatment principles.Basied on the above,we reach the most suitable method,and discuss it under several different situation to make sure it can be applied in the juridical practice.The third part is the conclusion.It is the scientific trial of the case of Luo,which is basied on the above analysis.The last part is the enlightenment.It is aptimization of suggestions that basied on the full artical for the related issues.The study of criminal amount hold great significance to the measurement of penalty in infringement of intellectual property crime.Although the stipulation of Criminal Law and judicial interpretation are reasonable on some degree,it still too vague to be applied,this can lead to the loss of judgement standard and manipuility in juridical practice,even though it did not breach the basic principle of the Criminal Law.Therefore,the analysis of the accomplished and attempted is needed,combing with the practice and find out the most suitable method to prefect the criminal protection of intellectual property.