New regulations on Internet infringement

Absrtact: January 11, the Supreme Court, supreme Prosecutors and the Ministry of Public Security jointly issued the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security on the handling of criminal cases of intellectual property rights to apply the law of several issues (hereinafter referred to as: "Opinion") Supreme People's Law

January 11, the Supreme Court, the highest prosecutors and the Ministry of Public Security jointly issued the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security on the handling of criminal cases of intellectual property rights applicable to a number of issues (hereinafter referred to as: "Opinion").

Xingxiang, deputy Dean of the Supreme People's Court, said that the current practice of intellectual property protection generally reflects the relevant laws and judicial interpretation provisions are not clear and specific, the policy legal boundaries are not easy to grasp, the legal application of difficult problems, affecting the crime of infringement of intellectual property rights in a timely and effective attack. The introduction of this "opinion" is aimed at solving the new situation and problems in the criminal cases of infringement of intellectual property rights by public security organs, people's Procuratorate and Peoples court in recent years.

New regulations on Internet infringement

According to the introduction, "opinion" a total of 16, mainly to violate the jurisdiction of criminal cases of intellectual property rights, administrative law enforcement departments to collect and draw evidence of the effectiveness of sampling and accreditation, the identification of the constitutive elements of crime and other issues have been further clarified.

In view of the increasing number of criminal cases of infringement of intellectual property rights through the information network, the opinion has made clear and operable provisions.

"As the internet has the characteristics of fast propagation, wide spread, large content storage capacity, and the coexistence of infringing works and non-infringing works, some local public security organs, people's procuratorates and peoples ' courts have imposed standards on the criminalization and sentencing of crimes against intellectual property through information networks, How to grasp or how to determine the existence of different opinions and understanding. "Xingxiang said.

The opinion provides that: for the purpose of profit, the dissemination of other people's writings, music, films, television, art, photography, video, audio and video products, computer software and other works to the public through the information network without the permission of the copyright owner shall be one of the following: Other serious circumstances ": (a) the amount of illegal business is more than 50,000 yuan; (b) The number of other works to be transmitted is 500 or more; (c) The actual number of clicks to propagate others ' works is more than 50,000 times; (iv) to disseminate the works of others by means of membership, with registered members reaching more than 1000 persons (v) If the amount or quantity does not meet the criteria set out in subparagraphs (a) to (iv), it achieves more than half of the above two criteria, and (vi) Other serious circumstances.

Clear Procedure Link Evidence transformation

Tanhongje, a professor of criminal law at Renmin University of China and a deputy attorney general of the People's Procuratorate of Dongcheng district of Beijing, said that the biggest bright spot of the opinion is the articulation of the criminal case procedure and the collection and transformation of the evidence.

Tian pointed out that earlier in 2004 and 2007, two high on the handling of criminal cases of intellectual property infringement specific application of the law several issues have been introduced two judicial interpretations, and the previous two judicial interpretations are focused on the entity perspective of norms, lack of procedural aspects of further interpretation.

At present, the most difficult problem in the criminal cases of intellectual property is procedure and evidence. It is mainly reflected in the cases of jurisdiction, evidence validity, administrative law enforcement and criminal judicial connection.

Counsellor, Associate professor of law School of Renmin University of China, pointed out that there are two major problems in the jurisdiction of the case, one is to evade jurisdiction to file, because sometimes the infringement of intellectual property is the local government focus on supporting enterprises, local government for local interests are not willing to investigate, the public security organs dare not Second, because this case is profitable for the public security organs to scramble for jurisdiction.

In order to solve the problem of jurisdictional confusion, this "opinion" in accordance with the provisions of the two principles, one who is first to accept the jurisdiction, and the second is the main criminal jurisdiction of the public security organs. If the public security organ is not the main crime of the public security organs, both sides have to govern, who to control?

For this purpose, the opinion stipulates that if a plurality of public security organs in violation of intellectual property rights have disputes over jurisdiction, they shall be designated by a common higher public security organ.

Tanhongje pointed out that how to determine the effectiveness of administrative law enforcement departments to collect and extract evidence, whether directly as criminal evidence in the judicial practice has been a major problem.

According to the provisions of the Criminal Procedure Law, the collection of the evidence in the crime cases should be collected by the investigation organs, but the clue of many cases is that the administrative law enforcement agencies found in the administrative law enforcement, such as the infringement of intellectual property found in the process of customs clearance, and after handing over the cases to the Can the evidence transferred by the executive authorities be turned into criminal evidence?

Tanhongje points out that this is a problem that has plagued the administration and the criminal more than 10 years, the "opinion" stipulates that the provisions of the two conditions, for the administrative law enforcement departments to collect, transfer, production of physical evidence, documentary evidence, audio-visual materials, inspection reports, identification conclusions, investigation records, on-site record, in the satisfaction of the "by the public security organs, After the people's Procuratorate examines, the court will be used as criminal evidence after confirming the certificate.

And for the Administrative law enforcement departments to produce witness testimony, party statements and other investigative records, the public security organs believe that it is necessary to use as criminal evidence, the provisions shall be collected and made in accordance with the law.

Tanhongje that the "opinion" mainly solves the problem of the specific operation of the criminal cases of intellectual property in the process of jurisdiction and the conversion of evidence effect. These problems are not only the problems in dealing with the criminal cases of intellectual property, but they are confronted with the problems of the connection between the administrative and criminal Procedure in the cases of environmental crimes, fake and shoddy goods and tax crimes.

Therefore, "opinion" not only has a good guiding role in the handling of intellectual property cases, but also has a reference role in dealing with a series of economic administrative crime cases, such as environmental crime cases, fake and shoddy commodity crimes and tax crimes cases.

Even the judicial system reform has played a very good role in the exploration and regulation of the process and the implementation of the national Intellectual Property strategy. "Tanhongje said.

Increase the punishment of intellectual Property crime

In addition to the legal application of criminal cases of infringement of intellectual property in criminal proceedings, the opinions of the opinion are also perfect for the original judicial interpretation in the entity angle.

Lu Min, a professor of criminal law at Cesl, said in the determination of the crime of counterfeit registered trademarks, the original "trademark with the same trademark" is often used to identify the basic visual indifference to the public to produce misleading standards, and this time to specify, change the registered trademarks of the font, letter case or the word rank, There is only slight difference between the registered trademark and the change of the spacing between the characters, letters and numbers of the registered trademarks, which does not affect the marked characteristics of the registered trademarks or even change the color of the registered trademarks as the basis for determination.

For the sale of counterfeit registered trademarks in the case of commodity crime "produced not sold" in the case of the attempt to clear the provisions of the 150,000 yuan as the standard of attempted.

And in solving the crime of violating intellectual property rights through the information network to enforce the standard of conviction and sentencing, "opinion" also from the amount of illegal business, the number of people to disseminate works, the number of clicks, the number of registered members, etc. made clear and operable provisions.

Huang Jingping, a professor of criminal law at Renmin University Law School, points out that the opinion will clarify the contents of the original relevant judicial interpretation, but not detailed, and explain the terms of the criminal law, which is advantageous to the unification of the scale of criminal justice and the punishment of intellectual property crimes. (Text/Hu Yajun)