It is generally believed in criminal law that the form of guilt of intellectual property crimes is intentional, and negligence does not constitute this kind of crime. This is because: first, from the perspective of criminal law theory, intellectual property crimes can be classified as statutory crimes. As a certain social phenomenon, statutory crime itself does not necessarily contain the nature prohibited by law or condemned by society. The reason why the state considers this kind of behavior to be a crime is entirely out of the needs of some administrative social policy. Because of its weak ethical condemnation, statutory criminals should not be too harsh on their subjective intentions, and the perpetrators should be treated as crimes only if they are intentional. Negligence is usually treated as a general illegal act. This is the inevitable requirement of the value orientation of criminal law humanity and criminal law modesty. Secondly, from the perspective of criminal legislation, considering the legislative principle that criminal legislation takes the punishment of intention as the principle, negligence as the exception and criminal intention is generally not stipulated, and negligence is clearly stipulated, there is no doubt that this kind of crime should be intentional.
Chinese criminal law scholars still have different views on the elements and contents of subjective intention of intellectual property crimes, especially on the understanding of illegality and the purpose of crimes.
first, the understanding of illegality. There are different provisions in criminal law in different countries about whether the understanding of illegality is intentional or not, and there are great disputes in criminal law academic circles, and the actual departments also have different understandings and practices. What position and attitude to take on this issue is of great significance to conviction and sentencing.
second, about the purpose of crime. At present, there is a great controversy in criminal law circles about the purpose of intellectual property crimes, especially whether it is for profit. There are three main viewpoints as follows:
The first holds that subjectively, the perpetrator of intellectual property crimes must be intentional and for profit; Profit-making is the subjective feature of this kind of crime, and it is also the subjective element of the crime [14] (P.46 ~ 461).
the second view is that the crime of infringing trademark rights and patent rights can only be based on intention subjectively; The crime of infringing copyright must be for the purpose of making profits in addition to being intentional in subjective aspects; Crimes that violate the right to trade secrets do not need to be for profit.
the third view is that the subjective aspect of the crime of copyright infringement is "for profit", which is too narrow and too dead. It is suggested that in addition to "for profit", considering that the actor plagiarizes, plagiarizes and imitates other people's works in a secret way, whether the expressions "for the purpose of stealing others' reputation" or "for the purpose of defaming others' reputation" can be added and appropriately expanded.
iv. Descriptive elements of the crime constitution of intellectual property rights
In China's criminal law, some criminal facts constitute a crime as long as they meet the four elements of a statutory crime constitution, namely, the object, the objective aspect, the subject and the subjective aspect, which is called behavioral crime. However, some criminal acts require such conditions as "serious circumstances" and "serious consequences" to establish a crime, which is called a plot crime or a consequential crime. In order to facilitate the study, we call the above four elements the basic elements of a crime, which are indispensable for the establishment of any crime; "Serious circumstances" and "serious consequences" are called descriptive elements of crime constitution, which are indispensable for the establishment of plot crime and consequential crime. Because our country adopts the mode of "legislative certainty and quantification" of crime constitution (which is different from the mode of "legislative certainty and judicial quantification" of foreign criminal law crime constitution), the descriptive elements of crime constitution, as the expression of legislative quantification, are usually directly used as the judgment sign of whether an act constitutes a crime in judicial practice, and whether its provisions are appropriate or not is of great significance.
There are the following five conditions in the criminal code of our country for the descriptive elements of the crime of intellectual property rights:
1. Taking "causing great losses" as the element, such as the crime of infringing trade secrets.
2. Take "the sales amount is relatively large" as an important element, such as the crime of selling goods with counterfeit registered trademarks.
3. Take "a huge amount of illegal income" as an important element, such as the crime of selling infringing copies.
4. take "the amount of illegal income is relatively large or there are other serious circumstances" as the important element, such as the crime of copyright infringement.
5. take "the circumstances are serious" as an important element, such as the crime of counterfeiting registered trademarks, the crime of illegally manufacturing and selling illegally manufactured registered trademarks, and the crime of counterfeiting patents.
It can be predicted that with the advent of the era of knowledge economy, China society of reform and opening up will face increasingly serious and complex intellectual property crimes. How to improve the criminal law protection of intellectual property rights is an important topic for criminal law scholars, and we look forward to further research on intellectual property crimes.