Study On The Amount Determination Of Selling Fakes

In practice,cases of selling fake products include,selling inferior products and selling merchandise under a counterfeited registered trademark,which is respectively prohibited in criminal law of crime of selling inferior products and crime of selling merchandise under a counterfeited registered trademark.Though these two crimes are crime about selling products,there are obvious distinguishes from the legal punishment and the analysis of the nature of crime.This thesis takes the crime of selling merchandise under a counterfeited registered trademark as the subject in the study,which mainly discusses the amount determination of this crime,especially on the value of goods in the attempted crime.Majority thinks the value of d infringing goods can be calculated on the basis of “Amount of proceeds arising from illegal business operations”: the value of unsold infringing products shall be calculated at the marked price,or at the average actual sales price of the infringing products that has been found out.If no price is marked on the infringing products or the actual sales price is unable to be found out,the said value shall be calculated at the average market price of the infringed products.The author thinks that the practice is not proper,which calculates the value of infringing goods according to “Amount of proceeds arising from illegal business operations”: firstly,according to Interpretation of the Supreme People's Court and the Supreme People's Procuratorate Concerning Some Issues on the Specific Application of Law for Handling Criminal Cases of Infringement upon Intellectual Property Rights,(Interpretation of Intellectual Property for short),“Amount of proceeds arising from illegal business operations” is the identification basis of crime of counterfeiting registered trademark and crime of illegally making or selling illegally made marks of other's registered trademark,whichis not the basis of crime of selling merchandise under a counterfeited registered trademark,the practice is lack of the legal basis;secondly,the practice does not consider the large number of cases of taking fake by fake”,and the value of infringing goods is higher than the actual price according to “Amount of proceeds arising from illegal business operations”,which deviates from the facts of crime;lastly,the identification basis is in order of priority,the average market price of the infringed products is the final choice,which breaches the principle of the doubt crime facts is in favor of the defendant.The author thinks distinction can be made to the cases of attempted crime of selling merchandise under a counterfeited registered trademark---take fake by fake and take fake by genuine,and calculates the value according to the different criteria.For studying the question of amount identification of the crime of selling merchandise under a counterfeited registered trademark in judicial practice,the author collects the relevant cases included in PKU law,uses the methods of data analysis,and concludes the main characters of this crime: the attempted crime is in the majority;the criteria is different;the identified amount is entirely higher;the relevant cases do not distinguish the selling form,etc.The reason of not distinguish the selling form may not take fully fact judgment.In criminal judicial practice,the premise of conviction and sentence is “the criminal act is clear and the evidence is conclusive”.In the course of judicial conviction,the fact of crime should be even more respect.During the judicial conviction of infringing the registered trademark,a large number of cases of “take fake by fake” are usually ignored.If the identification is based on“Amount of proceeds arising from illegal business operations”,it not only causes the identified amount is higher than the actual amount,but also transforms the illegal acts to the criminal acts,and infringe the lawful rights of parties.Therefore,the author thinks that it should conduct a factual investigation when dealing with this kind of cases according to the environment of selling fake and hardware facilities,and judge the form of selling fake.On the basis of judgment,we can reasonably identify the crime amount.Overall factual judgment to the cases of selling fake can consider the form of selling forms and accurately determine the crime amount,which protect the lawful rights of parties and make the fair verdict.The clearance of the two forms of selling fake also can make a distinction between illegal acts and criminal acts in cases of selling fake,which conforms to the modest of criminal law,and rationally frames the crime circle.In recent years,thoughwe stick to the principle of modest of criminal law,the continuous expanding of crime circle is the fact.It seems that the expanding crime circle contradicts to the modest of criminal law.But with social constantly development,kinds of new condition and new questions happen,the expanding crime circle conforms the social rule of law.However,what is the matter between the modest of criminal law and the expanding crime circle with the case of selling fake? The author thinks the two reason of the expanding crime circle of selling fake,on the one hand,strengthen the protection of intellectual property,and the other hand,it exists questions about amount identification,and leads to the expanding crime circle of this crime.Therefore,the legal identification needs fully consider crime facts,distinguishes the selling forms,and reasonably frames the crime circle of selling fake.