刑法规制假冒专利行为的困境与对策

Predicament and Countermeasure of Regulation of Counterfeiting Patent by Criminal Law

近年来,假冒专利行为日益多发,其中不乏一些严重危害社会的行为,但司法实践中的假冒专利罪案件几乎为零。造成这种状况的原因很多,其中一个重要因素是刑法中的假冒专利罪存在难以适用的问题,具体表现为相关法条的适用范围受限,专利行政执法中"以罚代刑"现象比较普遍,司法实践中假冒专利罪的入罪标准过高而法定刑较低等。为强化对假冒专利行为的法律规制,应当严密法网,将冒充专利的行为纳入刑法规制;降低假冒专利罪的入罪门槛,取消对实用新型专利和外观设计专利的刑法保护;废除对假冒专利行为的刑事自诉程序,加强公力救济;强化检察机关的法律监督,健全专利行政执法与刑事司法的衔接机制。

In recent years, the act of counterfeiting patents has become more and more frequent, many of which seriously endanger the society, but there are almost no judgments on the crime of counterfeiting patents in judicial practice. There are many reasons for this situation, one of the important factors is that the crime of counterfeiting patents in criminal law is difficult to apply, to be specifically, the limited scope of application of relevant laws, the widespread phenomenon of 'Punishment Replacing Penalty' in administrative law enforcement, the high conviction standard of the crime of counterfeiting patents in judicial practice and the low statutory penalty. In order to strengthen the legal regulation of the act of counterfeiting patents, we should tighten the net of justice, and bring the act of counterfeiting patents into the criminal law regulation;lower the incrimination standard of the crime of counterfeiting patents, remove the criminal law protection over the utility models and the design patents;abolish private prosecution procedure for counterfeiting patents, and intensify public remedy;enhance legal supervision of the People′s Procuratorates, and perfect the cohesive mechanism between administrative law enforcement and criminal justice.