从中美IP/WTO第一诉谈我国的轻罪体系建构——重在两国IP保护力度的分析

On the Construction of China's Petty Crimes System

本文从中美IP/WTO第一诉论及两国IP保护尤其是刑法保护力度问题。作者在全面分析了争诉原因和两国立法与司法机制差异的前提下,基于对两国IP保护强度综合评价指标的测算,认为两国IP保护力度大体相当,或许在个别方面(如刑罚力度)美国稍强于中国;美国侧重于司法保护,而中国则是民事、行政和刑事一体保护;中国的行政罚相当于美国的轻罪罚。从国家长远利益和社会稳定考虑,本文主张应尽快建立中国的轻罪体系,通过对立法与司法机制的局部调整,较合理地解决长久以来中国制裁体系不合理的状况。

Intrigued by the first lawsuit of IP/WTO, this text focus on the strength problem of criminal protection in IP industry between China and the US. Author given a comprehensive analysis on the cause of lawsuit and the differences between the two countries＇ s judicial mechanisms, and firmly based on the evaluate and mensuration of integration about the strength protection in IP industry between the two countries, and think that the strength of protection are roughly equal, however, few aspects of it （e.g. punishment strength） might show more stronger in the US than in China. The US take a emphasis on the judicial protection, whereas China takes a full protection ranging from administratve law to criminal law and civil law. Chinese administrative ptmishrnent is considered as punishment for misdemeanor in the US. Even though this fact is so, having taken account of the state＇s long- term interests, social stableness and international environment, Author still suggeste that China constitute a misdemeanor system by reasonably resolving the unreasonable situations of Chinese long - time existed punishment system through partly adjusting the mechanism of legislation and justice.