The study on Criminal Liability in Trademark Act-Economic Analysis of Law

• Main Authors: CHIU-PING WU, 吳秋萍
• Other Authors: 曾華松
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/27182343075847989316

碩士 === 世新大學 === 法律學研究所(含碩專班) === 99 === In order to understand the actual operation of the criminal liability (provisions of Article 81 to Article 83 of the Trademark Act ) of the offense of the Trademark Act, this study used “Intellectual Property Office Court Decision” provided in the Law and Regulation Retrieving System available on the website of the Judicial Yuan to search “Criminal” judgment and ruling, query scope of judgments includes Article 81 to Article 83 of the Trademark Act for a time period of five years from 2005 to 2009; according to the statistics provided by the Judicial Yuan, there are 116 closed cases in all, 25 cases are violation of Article 81of the Trademark Act, 59 cases are offense of Article 82 of the Trademark Act, 32 cases are violation of Article 83 of the Trademark Act, 82 cases are defendants, breaching Article 81 to Article 82 of the Trademark Act, penalized less than one-year imprisonment, but 19 cases are sentenced with penalty may not be commuted to fines, and with reprieve; in practice, more than 80% of cases violating Article 81 to Article 83 of the Trademark Act are penalized with commuting to fines or sentenced with reprieve instead of actually giving free punishment. Secondly, trademark right is contained in property rights. According to Article 15 of the Constitution it should be guarded to ensure the interests of consumers, as well as maintain its function for a fair competition in the market; however, violation of trademark right is penalized with different civil and criminal responsibilities by the Criminal Code, Fair Trade Act and Trademark Act, which raises my search motivation. While the legal interest of property is a basic human right stipulated in the Constitution, but under the principle of criminal law restraint, is there a room for examination and amendment of the criminal penalty against offense of Trademark Act? Is there a way to substitute criminal penalty for civil responsibility based on economic analysis of law? In the text I will use “Court Judgment against Intellectual Property” as the scope, with traditional International and Comparative Law, “Principle of Deference” of the Criminal Code, “Principle of Proportionality” of the Constitution, as well as the method of economic analysis of law to review whether there is a room for improving Article 81 to Article 83 of the Trademark Act, achieving the goal of protecting people’s properties, and at the same time using a means reducing damage to the minimum, safeguarding the interests of consumers, serving the function of keeping market operation in fair competition. Finally, I look forward that Article 81 to Article 83 of the Trademark Act can be amended through this study.