知识产权侵权行政责任及其归责原则探析——兼析TRIPs协议的相关条款

Analysis of the Administrative Liability and the Attribution Principles of Infringements upon Intellectual Property Rights——With analysis of the TRIPs provisions concerned

知识产权保护中公权力的介入,意味着其侵权行为,不仅应当承担民事责任,还需要承担行政和刑事责任。过错责任作为法律责任归责的基本原则,是知识产权侵权行政责任的基本归责原则。过错推定作为过错存在的判断方式,既能够适合行政责任追究的特点,也与过错责任原则并行不悖。讨论过错责任的例外,应以区分行政责任的处罚责任和其他责任为前提。为制止违法行为蔓延对行政秩序的损害,其他行政责任的无过错适用,可以认为是过错责任的例外。鉴于TRIPs协议的有关条款对我国相关立法的影响,进一步对TRIPs协议的有关条款进行比较分析,从行政法理论和与TRIPs协议协调与适应两方面,对我国相关立法和执法实践进行探讨是必要的。

The involvement of public rights in the protection of intellectual property rights means tort of intellectual property rights, which should not only assume civil liability but also administrative and criminal liabilities. The fault liability principle, as a basic attribution principle of legal liability, is the basic attribution principle of administrative liability of tort of intellectual property rights. As a way of deducing the existence of a fault, fault deduction is consistent with the characteristics of administrative liability investigation and does not go against the fault liability principle. Discussion of exceptions to fault liability should be based on the distinction between administrative punishment liability and other liabilities. To prevent violation from doing harm to administrative order, the application of non-fault in respect of other administrative liabilities can be assumed to be the exception to the fault liability. In view of the influence, the related articles of the TRIPs on China's legislation concerned, it is necessary to further analyses comparatively the TRIPs articles and to discuss China's related legislation and enforcement from the angles of both the theory of administrative law and coordination with and adjustment to the TRIPs.