VIII. Public Security Organs Act on Criminal Infringement on
Intellectual Property Rights
In recent years, the Chinese public security organs have adopted a series of
measures to crack down on all kinds of criminal IPR infringement, continuously
enhanced their law enforcement standards and abilities, and safeguarded the
sound development of the socialist market economy.
In 1998, to step up the fight against criminal IPR infringement, and in
accordance with the provisions of the "Criminal Procedure Law," the Ministry of
Public Security established a specialized department to organize, guide and
coordinate the fight against criminal IPR infringement, and supervise over the
handling of serious cases. Local public security organs at all levels, from the
top downward, have set up specialized investigation teams for receiving, filing
and investigating such criminal cases. From 2000 to 2004, the Chinese public
security organs cracked 5,305 cases of criminal infringement on IPR, which
involved nearly 2.2 billion yuan, and arrested 7,100 suspects. Among them, there
were 4,269 cases concerning infringement on the exclusive rights of trademark
ownership, which involved 1.18 billion yuan, and 5,564 suspects were arrested. A
number of suspects were found guilty of the production and sale of fake or
inferior products and illegal business operation, and sentenced accordingly.
Since November 2004, the Ministry of Public Security has launched a one-year
national campaign against criminal infringement on the exclusive rights of
trademark ownership, cracking some cases of criminal IPR infringement that were
of widespread and baneful repercussions and involved large amounts of money.
These cases included: production of fake Gillette razor blades cracked by the
public security organs of Zhejiang Province, production of fake Adidas and Nike
sports shoes cracked by the public security organs of Fujian Province,
production of fake Cisco (USA) electronic products cracked by the public
security organs of Guangdong Province, and production of fake brand-name
liquors, including Wuliangye, cracked by the public security organs of Sichuan
Province.
As more and more foreign companies are investing, selling their products and
building enterprises and R&D centers in China, the Chinese public security
organs have gradually established a system of regular communication and
coordination with IPR proprietors, earnestly listening to their opinions and
suggestions. Since December 2002, together with relevant associations of
enterprises with foreign investment, the Ministry of Public Security has held
three forums on "Protection of Intellectual Property Rights against Crimes" and
published forum declarations, improving communication and coordination in this
field.
In view of increasing transnational and trans-border criminal cases of IPR
infringement, the Chinese public security organs attach great importance to
international law enforcement cooperation in the fight against IPR infringement,
and have conducted cooperation with the law enforcement organizations of various
countries in assistance in investigation and collection of evidence, exchange of
information and judicial assistance. In July 2004, working together with the
Immigration and Customs Enforcement of the Department of Homeland Security of
the United States, the Chinese public security organs successfully cracked a
serious case of suspected sale of pirated DVDs in Shanghai, arrested seven
suspects headed by an American citizen, raided three places where pirated DVDs
were hidden, and confiscated over 210,000 pirated DVDs.
IX. Judicial Protection of Intellectual Property Rights
In recent years, the Chinese procuratorial organs have earnestly exercised
their duties of examination of arrests and prosecutions in cases of criminal IPR
infringement, as well as legal supervision over relevant criminal lawsuits in
accordance with law, handled a large number of cases of suspected criminal IPR
infringement. From 2000 to 2004, the procuratorial organs at all levels approved
the arrests of 2,533 people suspected of criminal IPR infringement, and
instituted prosecutions against 2,566 suspects. In 2004, the arrests of 602
people suspected of criminal IPR infringement were approved, and prosecutions
against 638 suspects were instituted. In the same year, procuratorial organs
around China launched a special drive to supervise cases involving production of
fake products and IPR infringement, during which they urged relevant
administrative law enforcement organs to transfer suspected criminal cases to
public security organs according to law, supervised the filing of cases that
should have been filed by the public security organs according to law, made sure
that suspected criminal cases entered judicial proceedings in time, and
investigated some criminal cases of conniving and covering up production and
sale of fake products and of IPR infringement involving government functionaries
abusing their powers.
For many years, the Chinese people's courts at all levels have continuously
strengthened work in IPR-related civil and criminal trials under the principle
of "justice and efficiency." Through handling a large number of IPR-related
cases, they have protected the legitimate rights and interests of Chinese and
foreign IPR proprietors equally, punished acts of IPR infringement and severely
cracked down on criminal IPR infringements, making unremitting efforts to
realize social fairness and justice.
Since the handling of the first case of a technological contract dispute in
1981, the Chinese courts have continuously expanded the range of IPR-related
trials to include cases concerning copyright, trademarks, patents, unfair
competition, computer software, new varieties of plants and integrated circuit
layout designs, thus establishing the status of court trials in the handling of
IPR-related cases. From 1998 to 2004, courts throughout the country concluded
38,228 IPR-related civil cases of first instance and 2,057 criminal cases of
first instance involving IPR infringement in accordance with Section Seven,
Chapter III of the "Specific Provisions" of the "Criminal Law," handing down
sentences to 2,375 criminals. Among these cases, in 2004, 8,332 civil
IPR-related cases of first instance and 385 criminal cases of first instance
involving IPR infringement in accordance with Section Seven, Chapter III of the
"Specific Provisions" of the "Criminal Law" were concluded, and 528 criminals
were punished. In the same year, the Chinese courts also concluded 932 criminal
cases of production and sale of fake or inferior goods, punishing 1,453
criminals involved, and concluded 1,434 criminal cases of illegal business
operation, punishing 2,103 criminals. A considerable proportion of the above two
types of cases also involved criminal IPR infringement.
To correctly apply laws and make law enforcement standards coherent, and
based on its experience in handling IPR-related cases, the Supreme People's
Court of China has formulated a series of relevant judicial interpretations in
accordance with the law, and improved a series of important IPR-related law
application principles, which have played an important role in the timely
settlement of new problems emerging from the handling of IPR-related cases and
in guiding the correct handling of IPR-related cases by the people's courts at
all levels. For example, the "Several Provisions on Law Application for Stopping
Patent Infringement before Litigation" promulgated by the Supreme People's Court
in June 2001 provided judicial measures for stopping right infringements and
effectively preventing more losses on the part of proprietors. The
"Interpretation of Several Issues Regarding Specific Law Application in Handling
Cases of Illegal Publications" promulgated by the Supreme People's Court in
December 1998 defined the standards of condemnation and penalty for criminal
offences of copyright infringement. The "Interpretation of Several Issues
Regarding Specific Law Application in Handling Criminal Cases of Intellectual
Property Rights Infringement" jointly promulgated by the Supreme People's Court
and the Supreme People's Procuratorate in December 2004 properly reduced the
condemnation standards for the crimes of IPR infringement strictly in accordance
with the provisions of the "Criminal Law" and in light of China's actual
conditions and judicial reality, increased the applicability of the relevant
provisions of the "Criminal Law," and provided a concrete applicable legal basis
for handling criminal cases of IPR infringement, and was thus of great
significance for effectively cracking down on crimes of IPR infringement.
The Chinese courts put special emphasis on the professional training of IPR
judges. After many years of judicial practice and systematic training, a
contingent has been formed of highly competent IPR judges who speak foreign
languages, and have an intimate knowledge of the law, rich judicial experience
and expertise in science and technology. Relatively complete IPR-related
judicial departments have been gradually established, providing a strong
personnel and organizational guarantee for effective IPR-related judicial work.
The Chinese courts have continuously enhanced
international exchanges and cooperation in the field of IPR-related judicature,
learning and borrowing from the useful experience and successful practices of
foreign countries. The Supreme People's Court actively conducts friendly
cooperation with the World Intellectual Property Organization and European
Union, and has hosted several seminars and training courses on IPR, the results
of which have been encouraging. These seminars and training courses have
effectively promoted the enhancement of China's IPR judicial protection, and
continuously pushed the level of its IPR-related judicial work to a new high.
