The Discussion Of The Calculation Standard Of The Amount Of Illegal Management Of The Crime Of Counterfeiting Registered Trademarks

The society is constantly improving.The economy is constantly evolving.Information technology is changing with each passing day.E-commerce platforms have sprung up.The express delivery industry is booming.People's material and spiritual life is increasingly rich.The status and value of trademarks are becoming more and more prominent.In order to strengthen the protection of trademarks,China's criminal law listed the crime of counterfeiting registered trademarks as the first crime of intellectual property crime.The amount of illegal business operation is an important standard for the specific measurement of the crimes of counterfeit registered trademarks and non-crimes and misdemeanors.It is a very important factor in the conviction and sentencing of counterfeit registered trademark crimes.In order to solve the problem of calculating the amount of illegal business,the supreme judicial authority in China has formulated corresponding judicial interpretations.However,the author analyzed 1,261 counterfeit registered trademark crimes involving the identification of illegal business operations collected in peklaw.cn between June 2017 and may 2018.Then,the author finds that although the judicial interpretation has already stipulated the standard of the amount of illegal business operations,the method used by the judges in the judicial practice to calculate the illegal business amount of the crime of counterfeiting registered trademarks is still very confusing.Among them,there are cases that do not comply with the provisions of judicial interpretation,and there are also cases where different calculation standards are adopted because the provisions of judicial interpretation are not clear.The calculation method of the amount of illegal business determines the result of the determination of the amount of illegal business,and will also affect the outcome of the referee in the case of counterfeit registered trademarks.The difference in the calculation method will lead to the unfairness of the different judgments in the same case and affect the authority of the judicial system.This paper is divided into two parts.The first part mainly expounds the present situation and existing problems of the illegal business management of the crime of counterfeiting registered trademarks.The second part includes the three chapters,which is the specific explanation of the author's point of view.The author believes that the price of counterfeit products should be regarded as the preferred calculation standard for the determination of the illegal business amount of counterfeit registered trademarks.For the case where counterfeit products have both the price and the actual average selling price,the actual selling average price standard should be preferred.In addition,the market intermediate price of counterfeit products should be replaced by price identification as the final standard.At present,the price recognition system has been established and is gradually improving.There are also a large number of examples in the judicial practice to entrust the price certification center to price the counterfeit registered trademark products.However,the applicable premise of the price identification is not clear,and the abuse of price identification is widespread.In this regard,the author makes the following recommendations.First,the applicable premise of price identification must be clear.Price identification can only be carried out when it is completely impossible to ascertain the price of the counterfeit product and the actual average selling price.Second,the price identification market must be liberalized.Instead of designating the relevant government department as the price appraisal agency,the independent third-party price certification agency will conduct the price appraisal.