| With the continuous expansion and deepening of research in the field of law in our country,theoretical research in the field of intellectual property criminal law has also gradually blossomed.However,with the deepening of theoretical research and the development of reality,many legal systems,especially the criminal law protection system for trademark rights,still need to be further improved.Among the many crimes of trademark crime,the crime of selling commodities with counterfeit registered trademarks has become the most common crime because of its low crime cost and high profit.Among them,the case of Deng Qiucheng and others selling products with counterfeit registered trademarks(hereinafter referred to as the Deng Qiucheng case)involved a wide range and a large amount of money.Thus,it was included in the 26 th batch of guiding cases by the Supreme People’s Procuratorate as a guiding case for trademark crime.In this crime,SPP believes that the number of counterfeit goods sold by the perpetrators,the scope of proliferation,the amount of illegal profits and other factors play a basic and decisive role in such crimes.In order to adapt to the criminal responsibility and punishment of the perpetrator,we must adhere to the combination of subjective and objective from a reasonable and reasonable perspective,and fully consider the potential social harm of such crimes.In the subjective aspect of this crime,SPP believes that it is necessary to consider the perpetrator’s behavior with the factors that can make objective judgment,such as the place,time and price where the perpetrator’s transaction behavior is located,rather than make a subjective judgment of the crime only by relying on the defendant’s own confession.Therefore,this paper explores the relevant disputes and application difficulties in the judicial practice of this crime by taking the Deng Qiucheng case as the specimen and taking the Crime of Selling Commodities Bearing Counterfeited Registered Trademarks as the objectives of research.The first part of this article is about the brief introduction of the Deng Qiucheng case and the focus of the controversy.This part briefly introduces the whole process of the defendant and the defendant’s unit committing a crime and the result of the judgment made by the people’s court.By collecting the disputes between the prosecution and the defense during the trial and the reasons for the court’s decision,the basis for the subsequent legal analysis is found.The second part is about the subjective cognition of this crime.The connotation of "clearly knowing" is analyzed and the controversial issue in the theoretical circle,which is whether indirect intention can be recognized as "clearly knowing " or not,is discussed firstly in this part.Then,combined with the determination of "clearly knowing" in judicial practice,the judgment result of this case is analyzed.The third part is about the determination of the amount of the crime.The third part is about the determination of the crime amount of this crime.This article briefly introduces three methods for calculating the amount of crime,which are calculated based on the actual average sales price,calculated based on the marked price of the infringing goods,and calculated based on the mid-market price of the infringed goods.And whether it is reasonable that the actual sales price and the minimum sales price are used to determine the value of goods for sale is analyzed by combining this case.The fourth part is about the determination of the criminal attempted form of this crime.Through the research on the relevant theories and judicial interpretations in the theoretical circle,the author concludes that the criminal form of this crime includes the form of attempt.And in the case where the amount of the actor’s sales has reached the completed amount,and the amount of the unsold commodities has also reached the attempted value,the defendant should be dealt with by the completed and attempted absorption method.At the same time,a specific analysis was made on the accomplished and attempted forms in this case.The fifth part is revelation.Through the above research,it is concluded that the identification of "clearly knowing" should be clear,and "clearly knowing" should include indirect intention and the generalization of specific content of it.Furthermore,the calculation method of the amount of crime should be comprehensively calculated,the applicable standards should be standardized,and the current situation should be adjusted.The middle market price of infringing goods should be included in the identification standard,and the price appraisal institution designated by the State should be introduced for evaluation.A more complete identification method should be explored when both accomplished and attempted forms coexist,and the identification standards for attempted forms are refined.The social harmfulness of the accomplished and attempted forms should be comprehensively considered,the provisions of judicial interpretation on the modification of accomplished standards should be improved. |
