A Study On The Amount Of Illegal Operation Of The Crime Of Infringing Intellectual Property Rights

Dr.Idris,former Director-General of the World Intellectual Property Organization,noted that "in the twenty-first century,intellectual property will be one of the powerful instruments for the country to promote economic growth and social development." With the further development of economic globalization,the transformation of intellectual property rights to industry,and even to enhance the country's international competitive advantage,will play an irreplaceable role.Since the first batch of guiding cases was issued in December 2011,the Supreme People's Court has issued 24 batches of 139 guiding cases.Of these,25 cases involving intellectual property rights accounted for 18.0%.This proportion is sufficient to see the high level of national attention to intellectual property rights in recent years.Although the number of intellectual property infringement crimes is much lower than in the civil sphere,this does not mean that the total number of such crimes in the criminal field is small.In these criminal cases,the amount of illegal operation in the crime of infringement of intellectual property rights is one of the core contents of conviction and sentencing.Of the 25 intellectual property cases enacted by the Supreme Law,only one of the criminal cases focused on the amount of illegal business.In addition to the introduction,the text is divided into the following three parts:The first part,the main content is the amount of illegal operation of crimes against intellectual property rights overview.This chapter,by expounding the existing judicial interpretation of the general provisions on the amount of illegal business,leads to the amount of illegal business in the specific embodiment of the various crimes.It also shows the value of the amount of illegal business for the conviction and sentencing of crimes against intellectual property rights.The author believes that the amount of illegal operation has both the general effect as the amount of intellectual property crime,and the unique advantage of the amount of illegal operation itself.The second part,the main content is the illegal operation of intellectual property infringement crime calculation scope.This chapter focuses on two aspects,namely,whether the value of semi-finished products and costs can be included in the amount of illegal business,and whether the amount of illegal business resulting from the act of brushing a single letter can be deducted.As to whether the value of semi-finished products should be included in the amount of illegal operation,the author believes that we can learn from the practice already existing in judicial practice,according to the completion degree of infringing products to calculate the corresponding amount of illegal operation.As to whether the cost can be included in the amount of illegal operation,the author thinks that the cost should be divided into the original auxiliary materials and other costs other than the original auxiliary materials,such as machinery and equipment.For the original auxiliary materials,all are included in the amount of illegal business.Costs other than raw materials are not included in the amount of illegal business.As to whether the amount of illegal operation resulting from the act of falsely increasing sales can be deducted,the author divides the acts into positive and reverse.The author believes that the reverse behavior does not involve the illegal operating amount deduction problem.The amount of illegal business deduction caused by the act of positive acts,and the essence lies in the part of the proof of responsibility by who bear the problem.In that the burden of proof has shifted,and the defendant's claim to the amount of the corresponding burden of proof.The third part,the main content is the illegal operation of intellectual property infringement crime calculation standard.At the beginning of this chapter,the calculation criteria for the amount of illegal operations are described first.Secondly,the essay analyzes the shortcomings of the existing calculation standards,and puts forward some suggestions for optimizing the calculation standards.Combined with the examples,the author found that there are the following deficiencies in the calculation criteria: the difficulty of evidence collection,the unclear order of the calculation criteria,the conflict of conviction and sentencing,and violating the principle of favoring the defendant.In this regard,the author put forward the optimization of the calculation standard,for infringing products,can be divided into two cases: in the case of falsely pretending to be genuine,the amount of the infringing products sold shall be calculated according to the market price standard of the infringing products,and the unsold infringing products shall be calculated on the basis of their list price;if there is no list price,the actual average selling price shall be calculated;In the case of selling counterfeit goods that customers know,the actual sales price of the infringing products shall be calculated.