Theory On Counterfeiting In The Crime Of Infringing Upon Intellectual Property

Since Supreme People's Procuratorate and Ministry of Public Security promulgated the “Provisions on Prosecution of Economic Crimes” in 2001 to the“Interpretation on Several Issues Concerning the Specific Application of Law in Criminal Cases of Infringing Intellectual Property” promulgated by Supreme People's Court and Supreme People's Procuratorate in 2004,the threshold for the crime of intellectual property infringement drops down and down.The standard of amount obscures the possible range of the meaning of the word used in law.Counterfeiting is the real action which infringes on trademark rights,patents,which has a specific normative meaning,and the behavior of posing,forging,alteration and other acts have essential differences,only counterfeiting should be punished according to Criminal Law.The criminal law of our country adopts the same kind of social relations as the classification method in the setting of guilty charges,and the definition about the way and type of behavior is rough.Criminal law theory on crime of counterfeiting registered trademarks and crime of counterfeiting patents is still shallow,judicial practice on counterfeiting registered trademarks,the crime of counterfeiting patents generally rely on the amount of counterfeiting,the connotation and the extension ofcounterfeiting still waiting to be clarified.Therefore,starting from the semantics of counterfeiting and combining the pre-existing trademark law with the patent law and following the principle of interpretation of criminal law and the formal logic,can not only helps clearly define the scope of criminal law on infringing on the counterfeiting of intellectual property crimes,adhere to the principle of legality;but also helps identify whether the action is succeeded or abortive through the real action-counterfeiting behavior,thus we can lay the foundation for the actor to assume criminal responsibility so that the crime and penalty can be matched.This article is divided into three chapters:The first chapter gives an overview of the counterfeiting in intellectual property crimes,probes into the different positions of the administrative path of criminal law interpretation and the path of substantive interpretation in the theory of criminal law,and demonstrates the connection between the pre-existing laws and regulations and criminal law provisions,and the possible path and rationality,we should rely on the Trademark Law and the Patent Law act to clarify the object of counterfeiting registered trademark crime as registered trademark,and of course includes the service trademark;the object of counterfeiting patent crime is the patent number,the patent certificate and the patent Documents or patent application documents;this article sorts out and summarizes the objective manifestations of counterfeiting of the two crimes and insists that reversing counterfeiting of registered trademarks and impersonating the patent don't belong to the counterfeiting in criminal law.The second chapter focuses on the distinction between counterfeiting and related behavior.First of all,we should interpret the normative meanings of "the same kind of goods" and "the same trademark" and " misidentifying other people's patented technology" to explain the "basically no difference in sight" and "enough to mislead the public" should adhere to strict objective Standard;secondly,Secondly,it analyzes the differences among faking,altering,unauthorized manufacture and impersonation of the approximate phrase of counterfeiting behavior.Finally,on the basis of semantic analysis,it makes a distinction between counterfeiting registered trademarks and counterfeiting patent.The third chapter discusses the determination of the cessation of the crime of infringing on intellectual property by means of counterfeiting and the assessment of the number of crimes which infringes on intellectual property by means of composite means.First of all,a clear definition of the amount of functional orientation,the statutory amount is a crime element of the elements,it is not a criterion to determine whether the crime is succeeded or not;the value of the products without counterfeiting registered trademarks or counterfeiting patent marks should not be taken into account in the amount of illegal business.The amount of sales is more likely to reflect the social harmfulness of the act than the amount of illegal gains.Secondly,an unsuccessful crime needs to be combined with the actor's subjectivity.Finally,when the act of counterfeiting presents a complex pattern,the perpetrator uses fake registered trademarks and fake patents to produce and sell fake and shoddy products,the actor's penalty should choose the serious one as a co-opener.