The objective elements of the crime of infringing intellectual property rights are manifested as acts that infringe on the exclusive rights of others without the consent of the obligee, and the illegal income is large or the circumstances are serious. Its characteristics are as follows:
Unauthorized source
First of all, the actor's behavior has no source, that is, his behavior has not been agreed or authorized by the obligee. According to the relevant provisions of China's Patent Law and Trademark Law, patents and registered trademarks can be transferred through legal exercise, and the obligee can also agree to use and enjoy this right by a third party. Therefore, when the patentee and the owner of a registered trademark agree to others' use and enjoyment of rights, even if the procedure does not conform to the legal provisions, it is only a general illegal act and does not constitute a crime. Only an act that goes against the will of the obligee without his consent can constitute a crime. Of course, the above-mentioned behaviors are often restricted by exceptions, such as restrictions on copyright or compulsory authorization. Even if the behavior of the actor does not obtain the consent of the right holder, it should be regarded as a legitimate source of rights.
patent rights
Secondly, this behavior mainly infringes on the exclusive rights of others, and in some cases it may be manifested as an infringement and violation of administrative law norms. In the basic form of criminal behavior, it can only be behavior, that is, the actor takes positive action, which violates the provisions of the criminal law. The crime of infringing intellectual property rights can only be constituted by actions, and omission cannot constitute the crime of infringing intellectual property rights.
Finally, the crime of infringing intellectual property rights is not a behavioral crime, but a consequential crime. The social harmfulness of its behavior is manifested in its harmful results and criminal circumstances. Therefore, the act must have a large amount of illegal income, a huge amount or other serious or especially serious circumstances. If the amount of illegal income is not large or the circumstances are serious, it does not constitute a crime. For example, "if the amount of illegal income from the crime of infringing personal copyright is more than 20,000 yuan, the amount of illegal income is more than 654.38 million yuan."
Subjective negligence
The subjective negligence of the actor does not constitute the crime of infringing intellectual property rights.
The behavior forms of committing intellectual property crimes vary with the object of rights and specific special laws, but from a macro perspective, it still has the nature of * * * *, that is, its behavior mainly includes:
False behavior
. The so-called counterfeiting means that a third party marks the patent mark, trademark and name of the intellectual property right holder on its products without the consent or permission of the right holder. In China's criminal law, it mainly refers to counterfeiting registered trademarks (article 2 13 of the current criminal law), counterfeiting patents (article 2 16 of the current criminal law) and counterfeiting other people's signatures (article 2 19 of the current criminal law).
Illegal sale
One refers to the act of selling "counterfeit goods", that is, selling any goods with the same logo as the protected trademarks, patents or substances without permission. The crime of selling goods with counterfeit registered trademarks in Article 2 14 of China's current criminal law belongs to this kind of behavior. The other is the distribution, publication and sale of copyright infringement. Distributing written works, movies, television, videos, computer software and other works with neighboring rights without the consent of the copyright owner; Publishing books that others enjoy exclusive publishing rights.
Illegal production
The first category is forgery and unauthorized manufacturing. It is manifested in two aspects: first, making it without authorization; The second is to make it beyond the scope of authorization. For example, article 2 15 of the current criminal law is the crime of illegally manufacturing registered trademark marks. The second kind of behavior is illegal copying, which copies other people's works by printing, copying, copying, rubbing, recording, video recording and copying. For the purpose of making profits without the permission of the obligee. For example, the crime of copyright infringement in Article 2 17 of the current criminal law of our country.
The act of obtaining, disclosing or using trade secrets by improper means.
It is complicated to identify the criminal object of the crime of infringing intellectual property rights. Its content must ultimately be based on the provisions of the intellectual property law and change with the changes. Therefore, the target composition of such crimes varies from country to country. The provisions of China's criminal law basically adopt the narrow standard of intellectual property rights, but at the same time, it also adds some broad contents including trade secrets. But the scope is still very limited. Most countries in the world have rich constituent objects, some of which are worth our legislative reference:
First, the trademark adjacent signs.
. Trademark adjacent marks refer to all words and graphics used to mark the products or services of enterprises except trademarks, mainly including the packaging, trade name and name of origin of goods. The criminal laws of quite a few countries and regions have clear provisions on infringement of adjacent marks of trademarks. For example, the criminal code of Taiwan Province Province has long stipulated the crime of obstructing trademark offices; There are four kinds of charges, namely, the crime of forging trademarks, the crime of trade names, and the crime of falsely marking commodities. In addition to the full packaging protection of a very small number of domestic wines; There is no special legal protection for other adjacent marks, but the Civil Liability for infringing the adjacent marks of trademarks such as names and covers is stipulated in the Anti-Unfair Competition Law, which obviously cannot adapt to the reality of the development of socialist market economy. It is suggested that the part of trademark infringement crime should reflect this practical need in criminal legislation to further standardize the content of criminal law.
Second, neighboring rights.
. China's legislation on the crime of infringing intellectual property rights is not connected with the existing relevant civil laws and legislation, which can not meet the needs of cracking down on such crimes, while there are relevant legislation abroad, which is worth learning from.