Research On The Criminal Regulation Of Circumvention Of Technical Measures Of Copyright In China

This paper is based on the Internet information age, in the situation of avoiding copyright technological measures behaviors occurring frequently and increasingly creating serious results, mainly explore the nature of behavior in criminal law, and the necessity of regulating the circumvention behavior by the criminal law, as well as the current punishment predicaments.In this case,it is nessary to explore a feasible path for regulating the circumvention behaviors in criminal law. By regulating the circumvention behaviors in criminal law to protect the copyright, it will contribute to accomplish the fuction of punishing crime of criminal law, so as to effectively protect the copyright and related rights, and improve the development of copyright industries, intellectual property rights, China's implementation of intellectual property strategy and build an innovative society. The structure of this paper is as follows:The first part is an overview of basic theory. The introduction of relevant content comes from the field of intellectual property law and the criminal theory basic analysis,mainly discusses the concept, the legislation of technical measures of relevant nations,and sum up the four characteristics of technical measures, then combined with the above analysis and based on the different stage and the subjects of behaviors, divide the circumvention behavior into two basic types. The second part is discussing the necessity of regulating the circumvention behaviors by the criminal law. This part analyzes the serious results caused by the circumvention behaviors, points out its serious harm for human rights, intellectual property industry, the national intellectual property strategy and the development of social economy, and then studys the risk theory of criminal law and the basic principle of criminal law, proposes that the current civil and administrative means of regulation is limited, if regulating the circumvention behaviors in criminal law,it will accomplish the fuction of criminal of preventing risks expanding and the crime.The third part mainly analyzes the difficulties faced by the regulation of circumvention of technical measures in China's current system of legislation.At first, China's current legislative mode of the subsidiary criminal law significance than substantive significance,does not have the maneuverability; secondly,to avoid the behavior from the perspective of the classification, for the simple act of evasion, without subsequent infringement,direct crime is inappropriate and difficult to apply to specific crime; thirdly, for avoid helping behavior in the current system of criminal charges, because the scope is narrow,the evaluation model of complicity between the perpetrator does not have the common intention and subjective cognitive and other reasons, resulting in inability to accurately apply copyright infringement crimes, invasion, destruction of computer system of crime,the crime of illegal business for punishment, so it is necessary to explore a feasible path for regulating the circumvention behaviors in criminal law.The fourth part is the conclusion, and proposes that the simple circumvention behavior that does not harm to society should not be directly identify into sin, when combined with subsequent tort crime elements, the behavior has become the means of behavior, implicated with subsequent violations, in this case,we can identify it as the crime of copyright infringement. The behavior of helping to avoid technical measures can follow the idea of independently identify as crime. Based on this, the paper further designs the criminal law article and the relevant provisions of the crime, expounds the constitution of the crime, and how to accurately identify the crime in the judicial practice.