假冒注册商标罪对象研究
发布时间：2018-11-03 10:23
【摘要】：我国市场经济在高速发展,激烈的竞争下,商标之于一个企业的价值和意义越发凸显。企业在市场中立于不败之地的一个重要前提是塑造和维护企业的商标价值。正是因为商标所蕴含的价值,越来越多的假冒商标的行为充斥在市场之中。因此,包括民商事、行政和刑事法律在内的多部法律都有相关的应对方案。其中刑法典有专门的罪名——刑法第213条假冒注册商标罪。学界对这个罪名现有较多研究,具体到犯罪对象这个问题上,也有不少探讨,但是根据笔者掌握的资料,只是局限于对普通商品商标的范围认定上,对其他商标是否能够构成本罪的犯罪对象的研究相当匮乏。本文尝试讨论证明商标、服务商标和集体商标是否能够成为本罪的犯罪对象的问题,因此本文分为三章展开。第一章主要讨论假冒证明商标行为的处理,本章分为三个部分。第一部分是基本问题分析,首先是证明商标的概念界定,由于普通商品商标是刑事实务界和理论界一直关注的重点,笔者认为在讨论证明商标时,本文也会专门说明普通商品商标和证明商标两者之间的关系。接着介绍国内外保护证明商标的立法规定的发展情况,特别是我国的情况。本章第二部分介绍现有观点对于证明商标是否属于假冒注册商标罪的犯罪对象这个问题的观点,在分析这些观点的基础上得出本文的观点——证明商标应当属于假冒注册商标罪的对象。本章的第三部分讨论适用假冒注册商标罪的问题,首先是构成要件的解读,专门讨论假冒证明商标行为的一些特殊性;其次是具体讨论数额以及情节的构成问题。第二章讨论假冒服务商标的处理,本章分为三部分展开。首先是基本问题的阐述,先是介绍服务商标的概念。和理解证明商标一样,要准确理解服务商标本文也会分析其与普通商品商标之间的关系。然后介绍关于服务商标的立法,指出对于假冒服务商标行为的入罪问题,仍然是困扰着实务界的难题,学者对此也有较多的研究讨论。对于服务商标是否能够成为假冒注册商标罪的对象问题,目前主要有肯定说和否定说之争。其次针对这些观点进行介绍和分析,在这基础上得出本文的观点,认为服务商标可以成为假冒注册商标罪的犯罪对象。本章最后部分将讨论适用假冒注册商标罪的问题,主要分析司法适用中的特殊性问题。第三章讨论假冒集体商标的处理的问题。主要分为三个部分,第一部分是介绍基本情况,首先是引入一则案例,以及界定集体商标的概念,这里也会讨论集体商标和普通商标之间的关系问题,接着介绍集体商标的立法沿革问题。本章第二部分论证本文认为假冒集体商标行为属于假冒注册商标罪的观点。本章第三部分讨论的是适用假冒注册商标罪的问题。
[Abstract]:With the rapid development and fierce competition of market economy in our country, the value and significance of trademark to an enterprise is becoming more and more prominent. An important premise for an enterprise to remain invincible in the market is to mold and maintain the trademark value of the enterprise. It is because of the value of trademark, more and more counterfeit trademark behavior in the market. Therefore, many laws, including civil and commercial law, administrative law and criminal law, have relevant solutions. Among them, the Criminal Code has a special offence-Article 213 of the Criminal Law the crime of counterfeiting a registered trademark. There have been many studies on this crime in academic circles, specifically on the subject of the crime. However, according to the information available to the author, it is only limited to the determination of the scope of the trademark of ordinary commodities. The research on whether other trademarks can constitute the object of this crime is rather scarce. This paper tries to discuss whether the proof trademark, service trademark and collective trademark can be the object of this crime, so this article is divided into three chapters. The first chapter mainly discusses the handling of counterfeit certification trademark, this chapter is divided into three parts. The first part is the analysis of basic problems, first of all, the definition of proof trademark. Since the general commodity trademark is the focus of criminal practice and theory, the author thinks that when discussing certification trademark, This article will also specifically explain the relationship between general commodity trademarks and certification trademarks. Then it introduces the development of domestic and foreign legislation on the protection of certification trademarks, especially in China. The second part of this chapter introduces the existing views on whether or not a trademark is a criminal object of the crime of counterfeiting a registered trademark. Based on the analysis of these viewpoints, the author concludes that trademark should be the object of the crime of counterfeiting registered trademark. The third part of this chapter discusses the application of the crime of counterfeiting registered trademark, the first is the interpretation of the constitutive elements, which is devoted to the discussion of some particularities of the act of counterfeiting certification trademark, and the second is the specific discussion of the amount and the composition of the circumstances. The second chapter discusses the treatment of counterfeit service trademark, this chapter is divided into three parts. First is the basic question elaboration, first introduces the service trademark concept. As proof trademark is understood, the relationship between service trademark and general commodity trademark is analyzed in this paper. Then it introduces the legislation on service trademark and points out that the problem of incriminating the act of counterfeit service trademark is still a difficult problem in the field of practice and scholars also have more research and discussion on it. As to whether service trademark can become the object of the crime of counterfeiting registered trademark, there is a dispute between positive and negative. Secondly, based on the introduction and analysis of these viewpoints, the author concludes that service trademark can be the object of crime of counterfeiting registered trademark. The last part of this chapter will discuss the problem of the crime of counterfeiting registered trademark, mainly analyze the particularity of judicial application. The third chapter discusses the treatment of counterfeit collective trademark. It is mainly divided into three parts. The first part is to introduce a case and define the concept of collective trademark. The relationship between collective trademark and general trademark will also be discussed here. Then introduce the legislative evolution of collective trademark. The second part of this chapter argues that the act of counterfeit collective trademark belongs to the crime of counterfeiting registered trademark. The third part of this chapter discusses the application of the crime of counterfeiting registered trademark.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.33
本文编号：2307512
[Abstract]:With the rapid development and fierce competition of market economy in our country, the value and significance of trademark to an enterprise is becoming more and more prominent. An important premise for an enterprise to remain invincible in the market is to mold and maintain the trademark value of the enterprise. It is because of the value of trademark, more and more counterfeit trademark behavior in the market. Therefore, many laws, including civil and commercial law, administrative law and criminal law, have relevant solutions. Among them, the Criminal Code has a special offence-Article 213 of the Criminal Law the crime of counterfeiting a registered trademark. There have been many studies on this crime in academic circles, specifically on the subject of the crime. However, according to the information available to the author, it is only limited to the determination of the scope of the trademark of ordinary commodities. The research on whether other trademarks can constitute the object of this crime is rather scarce. This paper tries to discuss whether the proof trademark, service trademark and collective trademark can be the object of this crime, so this article is divided into three chapters. The first chapter mainly discusses the handling of counterfeit certification trademark, this chapter is divided into three parts. The first part is the analysis of basic problems, first of all, the definition of proof trademark. Since the general commodity trademark is the focus of criminal practice and theory, the author thinks that when discussing certification trademark, This article will also specifically explain the relationship between general commodity trademarks and certification trademarks. Then it introduces the development of domestic and foreign legislation on the protection of certification trademarks, especially in China. The second part of this chapter introduces the existing views on whether or not a trademark is a criminal object of the crime of counterfeiting a registered trademark. Based on the analysis of these viewpoints, the author concludes that trademark should be the object of the crime of counterfeiting registered trademark. The third part of this chapter discusses the application of the crime of counterfeiting registered trademark, the first is the interpretation of the constitutive elements, which is devoted to the discussion of some particularities of the act of counterfeiting certification trademark, and the second is the specific discussion of the amount and the composition of the circumstances. The second chapter discusses the treatment of counterfeit service trademark, this chapter is divided into three parts. First is the basic question elaboration, first introduces the service trademark concept. As proof trademark is understood, the relationship between service trademark and general commodity trademark is analyzed in this paper. Then it introduces the legislation on service trademark and points out that the problem of incriminating the act of counterfeit service trademark is still a difficult problem in the field of practice and scholars also have more research and discussion on it. As to whether service trademark can become the object of the crime of counterfeiting registered trademark, there is a dispute between positive and negative. Secondly, based on the introduction and analysis of these viewpoints, the author concludes that service trademark can be the object of crime of counterfeiting registered trademark. The last part of this chapter will discuss the problem of the crime of counterfeiting registered trademark, mainly analyze the particularity of judicial application. The third chapter discusses the treatment of counterfeit collective trademark. It is mainly divided into three parts. The first part is to introduce a case and define the concept of collective trademark. The relationship between collective trademark and general trademark will also be discussed here. Then introduce the legislative evolution of collective trademark. The second part of this chapter argues that the act of counterfeit collective trademark belongs to the crime of counterfeiting registered trademark. The third part of this chapter discusses the application of the crime of counterfeiting registered trademark.
【学位授予单位】：中国青年政治学院
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.33
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