Study On The Criminal Regulation Of Private Entrepreneur Trademark Crime

In recent years,the total amount of intellectual property crime committed by private entrepreneur has been increasing year by year,and the trademark crime has become the main type of intellectual property crime committed by entrepreneur.The reason lies in the simple and general provisions of the current laws in our country,the inadequate implementation of the equal protection of property right policy,and the unclear definition of the relevant elements of the constitution,which leads to continuous disputes between the theoretical and practical circle.Especially in the practical circle,there are many difficulties in the judicial determination of the crime of entrepreneurs' trademark infringement.In this paper,from the perspective of criminal justice concept,object definition and act nature definition,the effective regulation of the crime of trademark infringement by private entrepreneurs is realized.In the perspective of criminal justice,the concept of equal protection of property right in accordance with the law should be upheld.The connotation of this concept is to uphold the equality of economic status of all forms of ownership,which should run through the whole process of market competition and judicial activity.To uphold the concept of equal protection of property right in accordance with the law,it's necessary to take into account the modesty principle of criminal law,limit the scope of punishment,control the scope of punishment,and advocate light punishment.The policy of intellectual property protection should be implemented,the trial mechanism of"three-in-one" should be actively promoted,and the role of the criminal policy of combining punishment with leniency should be actively played,so as to comprehensively enhance the effectiveness of intellectual property judicial protection.In the aspect of object definition,the theory of interest balance should be introduced to clarify the legal nature of the trademark interest enjoyed by the trademark owner,and the proper and reasonable protection of the trademark right is the key to construct the balance mechanism of the interest of the trademark owner and the social public interest.Combined with the concept and policy of criminal justice to explore the purpose of trademark protection,both the application of sanction measures in civil law and administrative law before the basic judicial policy of intellectual property protection attaches importance to penalties and the due meaning of criminal law modesty are to limit the crime circle.To clarify the object content of trademark crime,the principle of interest balance and the purpose of criminal law should be considered respectively.The definition of act nature should not only proceed from the legal point of view,but also combine with the criminal justice policy,social effect and other factors to make a hierarchical judgment.At the first level,the criminal policy of combining leniency with severity should be fully implemented in the link of conviction and sentencing.For the judicial organ,it is necessary to implement the requirement that the procuratorial organ should fully apply the non-prosecution system and the judicial organ should strictly distinguish the boundary between trademark violations and trademark crime in the conviction.At the same time,in the sentencing,the system of combining punishment with leniency and pleading guilty and the leniency system of confession and punishment should be implemented carefully.At the second level,the basic position of the theory of substantive interpretation should be insisted to determine the content of the constitutive elements of trademark crime.In the objective aspect,the determination of "the same commodity","sales amount" and "number of pieces" of trademark logo should proceed from the perspective of rationality and necessity of criminal punishment.The determination of guilt should be cautious,and the determination of innocence should be timely.In the subjective aspect,the judgment of the intentional form of the crime of counterfeiting registered trademark and the "knowing" of the crime of selling counterfeited registered trademark should abide by the principle of the unity of subjective and objective,so as to prevent the objective guilt of private entrepreneur.In the third level,the unity of legal effect and social effect should be considered comprehensively in judicial judgment.The determination of entrepreneur's "original sin" needs to give full play to the function of determining innocence of illegality judgment,and the behavior with only general illegality cannot be treated as a crime.In terms of the property protection of private enterprise,the illegality should be judged in essence,and a series of negative consequences caused by the property punishment after the conviction of private enterprise should be considered.After the benefit is measured,the social effect is better to avoid identifying the economic illegal act of private enterprise as economic crime.