Criminal law protection of intellectual property in the People's Republic of China
This article is devoted to the analysis of the criminal legislation of the People's Republic of China on liability for violation of intellectual property rights and means of individualization.
The aim of the author is to study the general approach of the country's leadership to the protection of intellectual property, the main characteristics of criminal legislation in this area, including the object of protection, the structure of legal regulation, the range of protected intellectual property, the relative severity of liability, etc.
The article is a presentation of a comparative study based on the comparative legal method. The basis for the study is primarily legislative acts. In addition, China's strategic documents are valuable material for research.
The author concludes that intellectual property in the People's Republic of China is protected primarily as an asset for the country's industrial development. Related to this are legislative and law enforcement approaches to countering intellectual piracy.
Keywords: criminal liability, intellectual property, comparative criminal law, intellectual rights, infringements on intellectual property.
In modern conditions of globalization, the importance of comparative legal research is undeniable. They allow us to identify trends in the development of legislation in different countries, to highlight the experience that can be borrowed.
Comparative research is of great importance in the field of intellectual property. This is due to the increasingly developing transnational use of the results of intellectual activity, international patenting systems and, unfortunately, an increase in international crime in this area.
In recent years, there has been an active change in the geography of innovation and the intellectual property market. This is primarily due to the fact that governments in different parts of the world strive to create the most favorable environment for innovation <1>.
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<1> Report on the situation in the field of intellectual property in the world for 2019. Geography of innovations: local centers, global networks. World Intellectual Property Organization, 2019. 156 p.
During the last thirty years of the 20th century, up to 70% of patent activity in the world was concentrated in the USA, Japan and Germany. But in the last 20 years, the activity in this area of East Asian countries, including China, has increased significantly. In 2021, a record number of patent applications were filed in this country - 1.59 million (3.4 million in total worldwide). In the same year, China surpassed the United States in the number of active patents <2>.
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<2> Global performance indicators in the field of intellectual property, edition 2022. Website of the World Intellectual Property Organization.
Of course, the legal system of Russia and China has its own traditions and peculiarities of legal regulation, but this is the value of their comparison. Within the framework of this work, an attempt is made to identify those successful approaches that could be implemented in domestic law, taking into account the legislative and law enforcement features and traditions of the latter.
Studying the legal experience of China is especially important for Russian legal science due to a number of reasons. Both countries have experience in building planned and market economies, as well as spreading communist ideology. It should be added that market relations in Hong Kong began to develop earlier than in the rest of China. Such a combination of different economic systems, as an environment for the formation of legal protection of intellectual property, requires scrupulous scientific analysis.
In addition, the legal protection of intellectual property in Russia and China has an approximately equal history - about two hundred years in Russia and about one hundred and fifty years in China <3>.
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<3> When specifying this period, the author proceeds from the fact that the first normative act in the patent law of Russia is the Supreme Manifesto of June 17, 1812. See about this: Intellectual Property Law. Patent law: Textbook Vol. 4 / Under the general editorship of L.A. Novoselova. M.: Statute, 2019. p. 11. It should be noted that the granting of privileges in Russia has a long history. Perhaps the first privilege can be considered a charter granted to the Polotsk townspeople for duty-free trade in all kinds of goods in the city of Polotsk in 1654. (The Complete Collection of laws of the Russian Empire. Vol. 1. St. Petersburg, 1830. pp. 351 - 352). Meanwhile, both this and subsequent privileges are rather a permit for a certain type of activity than a document on the protection of intellectual rights. See about this: Kirsanova E.E. Legal regulation of the turnover of rights to the results of intellectual activity in the digital economy. Moscow: Justicinform, 2022. p. 7.
In China, the beginning of legal protection of intellectual property dates back to the second half of the XIX century. In particular, in 1882, the protection of industrial technologies was introduced for a period of 10 years. This chronology is based on the book by the famous researcher of Chinese intellectual property law Yang Delhi "Intellectual Property and Business in China". See: Podchernin V.N. Historical and legal aspects of the formation of intellectual property culture in China // Bulletin of Novosibirsk State University. Series: History. Philology. 2008. Vol. 7. Issue 4 (Oriental Studies). p. 59.
The study of China's legal experience against the background of the political and economic rapprochement between this country and Russia is of particular relevance. A landmark in this regard is the state visit of Chinese President Xi Jinping to Russia in March 2023. On the eve of the two heads of state published articles on Russian-Chinese relations, each of which proclaimed long-term joint plans and programs <4>.
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<4> Vladimir Putin's article in the People's Daily "Russia and China - a partnership looking to the future" // Website of the President of Russia.; Xi Jinping. To persistently move forward towards new prospects of friendship, cooperation and joint development of China and Russia // Rossiyskaya gazeta. 2023. March 20th.
The importance of combating piracy in China is constantly stated by the country's leadership <5>. This approach has been implemented for decades. 2007 was proclaimed the Year of Intellectual Property Culture in the country, at the summing up of which the country's leadership noted that the country was experiencing a turning point in the formation of innovation policy <6>.
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<5> Premier Li stresses IPR protection, business environment.
Intellectual property in the People's Republic of China is protected primarily not as the personal rights of the author or another person, but as an asset for the industrial development of the country. This is clearly shown in the "Scheme of Judicial Protection of Intellectual Property in China (2016-2020)" published on the website of the Supreme People's Court of the People's Republic of China, which states that intellectual property rights can be transformed into advanced productive forces. In this context, it is necessary to strengthen judicial protection of intellectual property in order to maximize the value of intellectual property and facilitate the creation and commercialization of innovative results. This will provide powerful judicial protection for China's transformation into a global intellectual property and technology power <7>.
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<7> Scheme of judicial protection of intellectual property in China (2016-2020). Website of the People's Court of the People's Republic of China.
This document also shows the attention paid by the Chinese authorities to the protection of intellectual property. Here are just some of the measures taken: the creation of special intellectual property courts, the adoption of a three-in-one system for considering civil, administrative and criminal cases in the field of intellectual property, regular reviews and acts of interpretation on the application of law by the Supreme People's Court of the People's Republic of China (from 1985 to 2016, 34 judicial interpretations, related to intellectual property, and more than 40 documents on judicial policy). A Research center for Judicial Protection of Intellectual Property has been established at the Supreme People's Court, a Database for reviewing cases and research has been created, a Chinese database of international exchanges for judicial protection of intellectual property rights, judicial protection and the intellectual property market, and a Database for value research. The Court regularly publishes "Protection of Intellectual Property by Chinese Courts", "Annual Report of the Supreme People's Court on Intellectual Property Cases" and "Yearbook of Judicial Protection of Intellectual Property in China".
The approach to the protection of intellectual property as a resource for the development of the country's industry finds its expression in the structure of legislation. In the Criminal Law of the People's Republic of China <8>, the norms on crimes against intellectual property occupy a separate section in Chapter III "Crimes related to violation of the order of the socialist market economy". This section is adjacent, for example, to the section on tax crimes.
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<8> Criminal Law of the People's Republic of China. The base of normative acts of the Supreme People's Prosecutor's Office of the People's Republic of China.
The concentration of articles on crimes against intellectual property in one section indicates the uniform nature of the public danger of these crimes.
The compositions of almost all crimes in the section are designed as formal. The main criminalizing feature here is the size of the act or the presence of aggravating circumstances. For example, according to Article 216 of the Criminal Code of the People's Republic of China, forgery of someone else's patent under aggravating circumstances is punishable by imprisonment for up to three years or arrest, as well as a fine.
It is particularly worth noting the active work of Chinese law enforcement agencies in the fight against intellectual piracy. For example, the General Administration of Customs of China (GAC) confiscated 25.41 million units of goods suspected of violating intellectual property rights in the first four months of 2021 amid increased protection of intellectual property rights in the country. The GAC reported that between January and April, 18,800 shipments of such goods were confiscated <9>.
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<9> China customs seizes over 25m IPR-infringing items in January - April.
An important feature of this work is its coordination and strategic approach. The first of these features, in particular, is expressed in the creation of a single organizational structure - an Advanced national group, which has been operating since 2011 and includes 27 departments in one way or another related to countering intellectual property violations <10>. Joint actions and projects are an important area of work of these departments. Among them, one can single out the Cybermech program, which is designed for 15 years and provides measures to combat offenses and piracy on the Internet, or the Iron Fist campaign aimed at suppressing illegal actions such as trademark and patent infringement. Within the framework of the latter, by the first quarter of 2021, more than 46,000 cases of intellectual property infringement were investigated and considered <13>.
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<10> Han Junliang. Trends in the fight against counterfeiting and piracy on the Internet.
<11> Xin Kang. Online copyright protection in China.
<12> The Iron Fist Action Plan for the protection of Intellectual Property.
<13> Han Junliang. Trends in the fight against counterfeiting and piracy on the Internet.
The strategic approach finds its expression in the planning of the Advanced National Team of its work. Annually, under the supervision of this organization, a unified plan is drawn up, including areas of work and indicators for each department with subsequent reporting <14>.
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<14> Han Junliang. Trends in the fight against counterfeiting and piracy on the Internet.
The prospects for combating violations of intellectual property rights in the People's Republic of China are associated precisely with interdepartmental cooperation <15>.
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<15> Report on strengthening cooperation and strengthening the protection of intellectual property.
Thus, the following conclusions can be drawn about the criminal law protection of intellectual property in China.
1. Intellectual property in the People's Republic of China is protected primarily not as the personal rights of the author or another person, but as an asset for the industrial development of the country. It is considered not only as a resource for economic development, but also as a means for the country's global leadership in the field of innovation.
2. The special importance of intellectual property finds legal expression in the structure of the criminal law. The norms on crimes against intellectual property are structurally separate. The concentration of articles on crimes against intellectual property in one section indicates the uniform nature of the public danger of these crimes.
3. A wide range of intellectual property objects is subject to protection.
4. In criminal legislation, the elements of crimes against intellectual property are constructed as formal. Any violation of intellectual property rights is often considered criminal. In some cases, a crime-forming feature related to the size of the act is included in the composition of the crime.
5. The processes of digitalization and building an information society are reflected in legislation in the form of norms regulating new types of activities and norms on liability for violation of intellectual rights using information and telecommunication technologies.
6. One of the most important organizational mechanisms for countering intellectual piracy is the coordination of the actions of various departments based on strategic planning.