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Comparative Study on Criminal Protection of Intellectual Property Rights in the EU and China 中国-欧盟知识产权刑事保护制度 的比较研究

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Comparative Study on Criminal Protection of Intellectual Property Rights in the EU and China 中国-欧盟知识产权刑事保护制度 的比较研究 Comparative Study on Criminal Protection of Intellectual Property Rights in the EU and China 中国-欧盟知识产权刑事保护制度 的比较研究 www.ipr2.org Prepared January 2011 This publication has been produced with the assistance of the European Union. The contents are the sole responsibility of the IPR2 implementation team and can in no way be taken to reflect the views of the European Union nor other relevant authorities in Europe or China. Content may be reproduced and disseminated, as long as it is attributed to the original source. 1 This publication takes the form of a comparative review of criminal protection approaches and mechanisms in the European Union and in China, including litigation modes and handling of cases. It is undertaken in the framework of the EU-China IPR2 Project. Since its launch in 2007, IPR2 has developed a series of activities in support of strengthening the legislative framework and administrative, civil and criminal enforcement capacity in China and to promote cooperation between the EU and China on the protection of IP and international standards of IPR enforcement. IPR2 is a partnership project between the European Union and the People’s Republic of China on the protection of intellectual property rights in China, implemented between 2007 and 2011. This is done by providing technical support to, and building the capacity of the Chinese legislative, judicial and administrative authorities in administering and enforcing intellectual property rights; improving access to information for users and officials; as well as reinforcing support to right holders. IPR2 targets the reliability, efficiency and accessibility of the IP protection system, aiming at establishing a sustainable environment for effective IPR enforcement in China. For further information visit www.ipr2.org or contact [email protected]. 2 A Comparative Study on Criminal Protection of Intellectual Property in China and Europe by Zhongnan University of Economics & Law 3 A Comparative Study on Criminal Protection of Intellectual Property in China and Europe Contents Contents CHAPTER 1 - GENERAL REVIEW OF CRIMINAL PROTECTION OF INTELLECTUAL PROPERTY IN EUROPEAN UNION AND CHINA ..................................................................................................... 9 SECTION 1 - CRIMINAL PROTECTION SYSTEM FOR INTELLECTUAL PROPERTY IN EUROPEAN UNION .............. 9 I. Legal Protection System for Intellectual Property in European Union............................................. 9 (i) Status quo of the legal protection system for intellectual property in European Union .................. 9 II. EU’s Criminal Protection System for Intellectual Property ........................................................... 12 SECTION 2 - CRIMINAL PROTECTION SYSTEM FOR INTELLECTUAL PROPERTY IN CHINA .............................. 17 I. Chinese Criminal Protection System for Intellectual Property and Its Features ............................ 17 II. Chinese Legislation of Criminal Protection for Intellectual Property and Its Features ................. 20 CHAPTER 2 – COMPARISON OF CHINA AND EU’S POSITIONS ON CRIMINAL PROTECTION OF IPR ........................................................................................................................................................ 25 SECTION 1 - BALANCE OF INTERESTS: PERSONAL INTEREST AND PUBLIC INTEREST .................................. 25 I. Conflicts and Balance of Interests in IPR Protection ..................................................................... 25 II. Balance of Interests in Criminal Protection of IPR in China and EU ............................................ 27 III. Conclusion: Evaluation on Balance of Interests in Criminal Protection of IPR in China ............. 29 SECTION 2 - VALUE ORIENTATION: PERSONAL FREEDOM AND SOCIAL ORDER .......................................... 31 I. Conflicts between Personal Freedom and Social Order ............................................................... 31 II. Value Orientation in Criminal Protection of IPR in China and EU ................................................ 32 III. Conclusion: Evaluation on Value Orientation in Criminal Protection of IPR in China ................. 34 SECTION 3 - PROTECTION LEVEL: SUPER-HIGH LEVEL AND ULTRA-LOW LEVEL OF PROTECTION ................ 39 I. Two Tendencies of IPR Criminal Protection Levels ...................................................................... 39 II. EU’s Experience in Criminal Protection Level of IPR ................................................................... 41 III. China’s choice in criminal protection level of IPR ........................................................................ 45 CHAPTER 3 – MACROSCOPIC COMPARISON BETWEEN CHINESE AND EUROPEAN UNION’S INTELLECTUAL PROPERTY RIGHT CRIMINAL LEGISLATION ...................................................... 49 SECTION 1 - LEGISLATIVE DIRECTION OF INTELLECTUAL PROPERTY RIGHT CRIMINAL PROTECTION: LOCALISATION VS. INTERNATIONALISATION .............................................................................................. 49 I. From Localisation to Internationalisation: Legislative Direction of EU Intellectual Property Right Criminal Protection ........................................................................................................................... 49 II. Go Global: Legislative Direction of Chinese Intellectual Property Right Protection ..................... 51 SECTION 2 - LEGISLATION MODEL FOR CRIMINAL PROTECTION OF IPR: CENTRALISED VS. DISPERSIVE LEGISLATION .......................................................................................................................................... 58 I. Legislation Model for Criminal Protection of IPR in EU ................................................................. 58 II. Legislation Model for Criminal Protection of IPR in China ............................................................ 60 III. Evaluation on Legislation Model for Criminal Protection of IPR .................................................. 64 SECTION 3 - PENAL SENTENCE OF INTELLECTUAL PROPERTY INFRINGEMENT ............................................ 66 І. EU’s Penal Sentence of Intellectual Property Infringement ........................................................... 66 II. Chinese Penal Sentence on Intellectual Property Infringement ................................................... 68 4 A Comparative Study on Criminal Protection of Intellectual Property in China and Europe Contents CHAPTER 4 – MICROSCOPIC COMPARISON BETWEEN CHINESE AND EUROPEAN UNION ON CRIMINAL LAW PROTECTION OF INTELLECTUAL PROPERTY RIGHT ....................................... 71 SECTION 1 - COMPARATIVE STUDIES ON CRIME OF TRADEMARK RIGHT INFRINGEMENT .............................. 71 I. History and Current Legislation of Chinese Criminal Law Protection of Trademark Right ............ 71 II. Criminal Legislation for Trademark Right Infringement in Major European Union Countries ...... 75 III. Comparison of Criminal Legislation for Trademark Right Infringement in China and European Union ................................................................................................................................................. 81 IV. Summary ..................................................................................................................................... 84 SECTION 2 - COMPARATIVE STUDIES ON CRIME OF PATENT RIGHT INFRINGEMENT ..................................... 84 I. History and Current Legislation of Criminal Law Protection of Patent Right in China ................... 84 II. Criminal Legislation of Patent Right Infringement in Major Countries of European Union ........... 85 III. Comparison of Criminal Legislation for Patent Right Infringement in China and European Union .......................................................................................................................................................... 90 IV. Summary ..................................................................................................................................... 92 SECTION 3 - COMPARATIVE STUDIES ON CRIME OF COPYRIGHT INFRINGEMENT ......................................... 92 I. History and Current Legislation of Criminal Law Protection of Copyright in China ....................... 92 II. Criminal Legislation against Copyright Infringement in Major Countries of European Union ...... 96 III. Comparison of Criminal Legislation against Copyright Infringement in China and European Union ............................................................................................................................................... 100 IV. Summary ................................................................................................................................... 103 SECTION 4 - COMPARATIVE STUDIES ON CRIME OF BUSINESS SECRET INFRINGEMENT ............................. 103 I. History and Current Legislation of Criminal Law Protection of Business Secret in China ........... 103 II. Criminal Legislation against Business Secret Infringement in Major Countries of European Union ........................................................................................................................................................ 106 III. Comparison of Criminal Legislation against Crime of Business Secret Infringement in China and European Union .............................................................................................................................. 110
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