The limit of connection between civil law and criminal law about copyright crime from the perspective of statutory offense
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D924.33;D923.41

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    Abstract:

    In the era of increasing intellectual property protection, in order to achieve comprehensive protection of copyright, relevant provisions of the Copyright Law and the Criminal Law have been amended. The revision of the provisions urgently needs to be explained, and the conflicts between the two laws should also be sorted out. Therefore, it is necessary to explore the connection between civil law and criminal law about copyright crimes, in order to not only meet the requirements of the unification of legal order, but also meet the needs of criminal law protection of intellectual property to the greatest extent. However, the negative stance of advocating that the connection is not limited will not only create loopholes in criminal law, but also logically deviate from the principle of statutory crime and punishment, and will reduce the effect of the amendment of the Criminal Law Amendment (11). By examining the basis of its argument and analyzing the influence of the attribute of statutory offense on the establishment of the crime, it is found that the crime of copyright infringement should adhere to the moderate monism of illegality, but there is no basis for making a unified meaning for the relevant concepts, and there is no reason to impose the effect of limiting criminalization on the subsidiary criminal liability clause. The criminal law can independently explain the connotation of the act of copying, distributing, and disseminating to the public through information networks. Therefore, it is necessary to establish a doctrinal plan that aims to achieve the purpose of criminal law and the limit of the connection, based on the premise of violating the preceding law. Firstly, in the process of achieving connection by violating the preceding law, the Copyright Law should be strictly followed to determine whether the work enjoys specific copyright and whether the suspect has infringed on copyright. If a negative answer is given at this step, the crime of copyright infringement cannot be established. Secondly, in the process of establishing limits through achieving the purpose of criminal law, it is necessary to follow the purpose of criminal law, consider the textual scope of the constituent elements and the necessity of punishment, and ultimately determine whether a crime is established. Specifically, first, reasonably explain the meaning of reproduction and distribution, including the act of copying, distributing, or both. Among them, individual copying activities should not be excluded from the scope of punishment, distribution should be limited to initial distribution and total distribution, and publishing and renting activities also belong to one type of distribution activities. However, renting books and copying and distributing illegal deductive works cannot be criminalized because they do not infringe copyright. Second, explore the possibility of incriminating the acts specified in Article 52 of the Copyright Law, affirm the punishment of plagiarizing the works of others, using the works in the form of annotations, broadcasting or publicly transmitting live performances without permission, and reject the punishment of publishing a work created in collaboration with others as a work created by oneself without the permission of the co-authors, recording and performing, and using the work in the form of adaptation or translation. Third, prove that the behavior of webcasting and deep linking is implied by spreading to the public through information networks.

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姚万勤,李灿.“法定犯”视角下著作权犯罪民刑衔接的限度[J].重庆大学学报社会科学版,2024,30(5):249~260

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  • Online: November 12,2024
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