A Study On The Legislation Of Penalty Protection In China's Criminal Law

At present,China's criminal law for the protection of patent rights only in the fake patent crime,through the provisions of the crime to protect the national patent management order and patent rights.However,there is a gap between the provisions of the crime and the TRIPS Agreement advocated the principle of criminal relief such as the full range of protection,rights-based and so on.Therefore,there are some problems in the legislation of patent protection of criminal law,such as the single legislative model in the legislation of patent crime,less crime on the patent,unscientific design of the patent crime and improper penalty setting.At the end of the transition period of 15 years after China's entry into WTO,it is necessary to fully meet the requirements of WTO,strengthen the criminal protection of patent right,and improve the patent criminal legislation.To this end,we should treat TRIPS Agreement as a guiding platform,compare the TRIPS Agreement,the Patent Law and the Penal Code for the criminal protection of patent rights.On this basis,starting from the current situation of legislation in China,use a combined type of legislation to strengthen the linkage between the Criminal Law and other relevant laws,combined with the technical content of the Patent Law to achieve a more professional patent protection of criminal law.At the same time,add charges of the illegal implementation of patent and imitation of patent,together with the existing fake patent crime to form a patent crime system,becoming a full protection of the criminal law of the patent right.At last,revise the criminal law on the provisions of the fake patent crime,change the description of this crime,reduce the standard of constitute the fake patent crime,set different penalties between the invention and other patents to perfect the legislation of this crime and ensure the criminal protection of patent rights.