论专利权行刑衔接机制中行政证据的证据地位

The Status of Administrative Evidence in the Convergence Mechanism of Administrative Law and Criminal Law in Patent Right

目前,我国行刑证据衔接的体系存在行政证据的证据地位不明确在内的问题,专利权的行刑衔接也不例外,需要理论层面的进一步分析与研究。但传统意义上,学界在研究行政证据在刑事程序中的运用时,都会将行政证据默认属于刑事证据的组成部分,但是这一观点并没有很好地与行刑衔接的基本程序相结合,也忽视了刑事证据制度的特殊属性。因此,有必要采取“区分说”的观点,将涉案的专利权行政证据依据其证明力划分为证据、线索及不具有证明作用的材料,同时对涉及的证据制度与办案程序进行针对性完善,以进一步完善专利权行刑衔接的证据制度体系。

At present, such problems exist in the convergence system of evidence of administrative law and criminal law as the unclear status of administrative evidence. The convergence of administrative law and criminal law in patent right is no exception, which needs to be further analyzed and researched theoretically. However, in the traditional sense, when studying the application of administrative evidence in criminal procedures, the academic circle by default regard administrative evidence as a part of criminal evidence. The viewpoint is not well combined with the basic procedure of the convergence of administrative law and criminal law as it ignores the special attribute of criminal evidence system. Therefore, it is necessary to adopt the viewpoint of “differentiation theory”, and classify the administrative evidence of patent right involved into evidence, clues and materials without proof effect according to its evidentiary power. Meanwhile, targeted improvement of the evidence system and handling procedure involved is proposed to further improve the evidence system of the convergence of administrative law and criminal law in patent right.