涉外定牌加工行为的刑事规制路径——以一起OEM代加工企业销售尾单刑案为视角

Methodology of Criminal Regulation for the Processing of Foreign-Designated Brand Commodities——From the Perspective of a Criminal Case Involving an OEM Processing Enterprise Selling Final Orders

涉外定牌加工贸易模式在知识产权领域是一个老问题,却又常谈常新。其不仅是法律问题,也体现了产业导向、司法政策倾向。涉外定牌加工问题在民事领域的争议带来了刑事入罪的谨慎。对于涉外定牌加工行为的刑事判断,不能简单地固化为可以入罪、不可以入罪,而是应当在遵循法秩序统一原理、二次违法性理论的前提下,进行个案判断,通过对各侵权要素的认定,研判入罪可行性、刑罚必要性。

The mode of foreign licensed processing trade is an old problem in the IPR protection sector.Though it is old,it contains new meaning when talked about again.It is not only a legal issue,but also indicates industrial orientation and judicial policy tendencies.The controversy brought about by the problem of processing foreign-designated brand commodities in the civil field has reminded judicial officers to be cautious in criminalization.When it comes to the criminal judgment of foreign-designated brand commodity processing behavior,it cannot be simply judged as guilty or not guilty,but should be judged by following the principle of the balance between law and order,and with the prerequisite for no further criminal violation.By determining various infringement elements,judicial officers can consider the feasibility of criminalization and the necessity of punishment.