Strengthen the administrative law enforcement and criminal justice network environment to promote the convergence of criminal law protection of copyright

Abstract network development and change makes criminal copyright infringement causes harm to society is increasing, seriously undermined the market economic order, but its criminal law to protect our country has great limitations. In the current economic development conditions and judicial environment, to comprehensively improve the network environment on copyright legislation and to further strengthen the administrative law enforcement and criminal justice convergence in order to allow for the copyright to play its role in social and economic development.

Paper Keywords Criminal Protection of copyright administrative enforcement and criminal justice

Internet has changed people's lives, for copyright cybercrime also produced a lot of new changes and new features, new information and communication characteristics determine copyright infringement under the network environment more far-reaching consequences of a criminal offense, against more severe.

First, the existing criminal law on copyright protection under the network environment

(A) legal protection for copyright infringement cyber crime criminal regulation, China started late. In the 'Criminal Law' Article 217 of the crime of copyright infringement, the infringement and to carry out the provisions of the network. Other regulations and judicial interpretations only to protect them.

December 28, 2000, 'the decision on safeguarding Internet security' to define the use of the Internet infringe intellectual property rights constitutes a crime, be held criminally responsible in accordance with the relevant provisions of the Criminal Code. December 20, 2001, 'Computer Software Protection Regulations' clearly a computer software copyright infringement of the legitimate rights and interests of software copyright liability. May 18, 2006, 'Information Network Transmission Right Protection Ordinance' for copyright holders, performers, audio and video recordings of Information Network Transmission Right Protection detailed provisions, to further clarify the use of the Internet for criminal copyright infringement.

Judicial interpretation of copyright protection for the relevant provisions. Especially the January 11, 2011, the Supreme People's Procuratorate, the Ministry of Justice jointly developed 'on the criminal cases of IPR Violations applicable law a number of issues' from the network environment, criminal cases of copyright infringement jurisdiction, criminal copyright infringement case 'for-profit' identification, criminal law 'distribution' of that, through the information network dissemination of infringing works convicted and punished behavior standards, indirect infringement under the network environment and other aspects of criminal copyright infringement issues explained .

(Two) to protect the judicial practice in recent years, the face of the new situation of intellectual property infringement, our country has increased its efforts in protecting intellectual property rights. Justice system for the importance of intellectual property protection efforts are gradually increased. To prosecutors, for example, in recent years, the procuratorial organs approved the arrest and prosecution of the annual IPR crimes, manufacturing and selling counterfeit and shoddy goods crime suspects, accused persons in 2000-3000 about 2008 to November 2010 , the prosecution filed a total of 75 should be the case without filing for the supervision.

Second, the criminal protection of copyright and restrictive moderation

For copyright under the network environment, although criminal law to strengthen protection of copyright infringement to be clearly defined network boundaries crime and tort, not a criminal excessive intervention in the market economy.

(A) Criminal copyright protected person moderation as a balanced intellectual monopoly interests and social public interests and to make the system design, intellectual property law itself was designed to encourage knowledge creation and knowledge between product requirements to achieve the desired social benefits balance, which determines the copyright of intellectual property rights as an important part of the legal protection is limited. And copyright is a private right, copyright infringement in most cases only need infringement shall bear civil liability, only certain serious violations of social harm will trigger criminal procedure, criminal law Modesty modern decision copyright protection is the need for moderation, and only when the civil and administrative means are insufficient to assume the responsibility to protect the rights of the time, criminal law to intervene.

(Two) the restrictive copyright protection for Criminal Legal Protection of Copyrights restrictive limitations mainly in the legislative and judicial limitations on. Civil law provisions concerning copyright belongs accessory criminal offense, can play the role of tips, but this type of criminal law norms accompanying criminal law is based on the premise and foundation, once the criminal law is no corresponding provision disjointed, because Crime and Punishment principle bound Accessory Criminal Law will be shelved, can not be applied.

The rapid development of Internet, network technology rapidly updated technical reconnaissance public security organs of technical knowledge and techniques have made high demands. The public security organs, personnel structure and equipment problems greatly limits the network environment for copyright infringement crime investigation efforts. And most of the criminal division of the Court's Procuratorate of intellectual property cases no special handling group formation, making the judicial protection of the criminal law has been greatly restricted.

Third, the network environment, the development trend of Criminal Protection of Copyright

(A) a basic idea of ​​the trend. Gradually increase the protection of the concept gradually increase protection of the concept refers to the criminal law of intellectual property protection, to gradually increase their protection efforts. Intellectual property rights are human development to a certain stage of the product, for copyright protection is also gradually increased. Gradually increase the protection of the concept mainly prominently from 'weak protection' to 'strong protection' trends. Long-term implementation of 'weak protection' is the result of economic backwardness, but with the internationalization of the economy and the impact of a higher level of development, 'weak protection' for developing countries to bring more damage. In the current economic society, intellectual property has become an important symbol of wealth and an important source of intellectual property rights may create social wealth will be more than traditional industries. Therefore, strong intellectual property protection is to promote the country's economic development a key means.

2. Variety of protection combined with a variety of protection combined with the concept of the concept means that criminal law protection of intellectual property, and a variety of methods to a variety of mechanisms used in combination. First, in the legal system, protection and administrative protection to criminal, civil protection combined implementation of intellectual property rights in order to be more effective legal protection. Second, we must attach importance attached Penal Code protection and criminal law protection combination. To be more effective criminal law protection of intellectual property, the need to promote the protection and subsidiary Criminal Penal Code to protect the combination of tighter weave and rational criminal law system, give full play to the role of criminal law attached.

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(two) legislation to protect the development trend 1. Perfect mode network under the criminal legislation of copyright protection in criminal law does not clearly defined. Through Criminal Law Amendment right to modify, enhance protection.

First, to expand the scope of protection of copyright. Criminal copyright protected works in the form should be gradually expanded, and the traditional forms of works transformed digital works should be included within the protected object.

Secondly, we must adjust the Criminal Law and Intellectual Property Law docking. Such as 'to reproduce and distribute' and 'copy, distribute' adjustment, 'communication to the public through information network' provisions, etc., with the 'Copyright Law' consistent.

Again, to gradually abolish criminal profit purposes of copyright restrictions, will have a commercial purpose to establish as a crime of copyright infringement of aggravating circumstances. To adjust the penalty structure, emphasis on punishment of criminal fine and qualifications apply. Times more than the judicial interpretation of the legislative system of fines pattern into criminal law norms; setting eligibility punishment, so that it can apply to Internet copyright infringement.

Another scholar proposed to be specialized in intellectual property crime legislative model, developed specifically regulate violations of the criminal law of intellectual property crime in particular, to strengthen the network of intellectual property protection. The author believes that the existing criminal justice system, although the network does not cause Zhouyan copyright protection, but it is available through the existing criminal law framework, through amendments to the Criminal Code, legal documents, and other subsidiaries of criminal law means, the improvement of the legal system the development process, the constant emergence of new areas and new problems, not only through special legislation to resolve.

2. Give full play to the role played affiliated subsidiaries Penal Penal role is the premise that the provisions in the Penal Code punishing the basic principles of copyright offenses, the Criminal Code to make subsidiary meet the principles of legality and better safeguard the authority and stability of the Penal Code, it will not classified as a subsidiary of the Criminal Code makes furnishings. In the field of copyright, subsidiaries criminal law is mainly reflected in the 'Copyright Law' and other design intellectual property crimes and civil law administrative law, regulations, intellectual property crime which provides specific criminal penalties accordingly. To make the Penal Code and Criminal Elements subsidiary butt, making punishment more stringent intellectual property legal system. In Germany, France and other countries, for example, on the use of the penal code and intellectual property laws combination model, our study can draw on its legislative model.

Fourth, the procuratorial work in a network environment on the development trend of copyright protection

(A) strengthen the administrative law enforcement and criminal justice convergence of the current copyright protection of public power is mainly reflected in the administrative department of culture-based administrative protection, but the administrative organ in front of rampant IPR violations, often only from the maintenance of economic order to investigate this point, very few people would constitute a criminal act transferred to judicial organs be held criminally responsible, it is difficult to help victims receive appropriate compensation, relative to the infringer through the infringement illicit profits obtained in terms of administration confiscation and fines for infringement of people simply can not achieve the purpose of curbing their illegal activities, but to a certain extent indulgence infringement. In early 2011, the State Council Legislative Affairs Office and other units issued 'on the strengthening of administrative law enforcement and criminal justice convergence of views of the work', you do related work put forward specific demands to administrative law enforcement departments in a timely manner would constitute a criminal violation of intellectual property transferred to criminal judiciary. As prosecutors, we must strictly fulfill their legal oversight responsibilities, to strengthen cooperation with the administrative department for cultural administration coordination of enforcement activities docking, strengthen the criminal law for copyright protection.

1. Strict compliance with statutory responsibilities for the regulation of copyright crime and punishment, administrative law enforcement and public security organs, procuratorial organs based on their own first, a clear division of labor, carry out their duties. In the administrative enforcement process found to constitute a crime, shall promptly refer the case to the public security organs, and make investigations and evidence collection, evidence collection to seize the best opportunity. For the transfer of the public security organs suspected of a crime, shall promptly investigate. Procuratorial organs should strictly perform their duties according to law, in cases of suspected crimes, according to the law review of arrest, prosecution, on the decision not to prosecute the case, the people's court for judgment of acquittal or exempted from criminal punishment cases that should be given administrative punishment according to law , according to the law or judicial procuratorial proposals put forward proposals concerning the transfer of administrative law enforcement organs to deal with, and constantly improve and perfect the mechanism for the transfer of economic crime cases, standard convergence program.

2. Improve the coordination mechanism prosecutors with the 'fight against economic crime coordination consultation mechanism' to communicate with various departments in a timely manner, liaison, coordination and timely consultation on major cases of the deployment of cases investigated and suspects inquiry and control, etc. the big cases and involve sensitive characters, case sensitive issue, the initiative to coordinate the relevant departments to study them and analyze in order to achieve timely and effective solution to the issues related to the effect.

3. The progressive realization of information sharing with other departments prosecution authorities to make use of modern information technology, strengthen ties on the basis of, and actively create conditions to gradually establish and improve information sharing mechanism. To build a platform for information exchange and sharing, make full use of existing information sharing networks, strengthen the administrative law enforcement and criminal justice cases interoperability information, to further improve information sharing mechanism to improve convergence efficiency.

4. Strengthening legal supervision prosecutors in administrative law enforcement and criminal justice convergence process their full prosecution of legal oversight function. For the case to be transferred to public security organs for effective and timely filing oversight, for significant and influential copyright cyber crime, according to the request of the public security organs or early intervention initiative to deploy staff according to need public security organs of the investigation activities, to participate in case discussions, review of relevant case materials, made that evidence suggested that the implementation of legal supervision on investigation activities. Procuratorial organs should perform their duties, law enforcement investigating serious injustice occurred in corruption and bribery, dereliction of duty and other duties offense. Strict accountability to ensure that the system implemented to ensure convergence of administrative law enforcement and criminal law enforcement system effectively.

(Two) the professional development of law enforcement rapid development of web-based, and gradually increase the professionalism of copyright, prosecutors should also enhance its network environment for copyright infringement in professional level, in the copyright infringement finds that the evidence collection, evidence of system analysis and other aspects to enhance their own quality, to adapt to the new situation of development and change.

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