상표위조행위 처벌에 관한 형사법적 문제점과 개선방안 (The Problems and Reform Measures from Point of View of Criminal Laws on the Criminal Punishment and Procedure of the Trademark Counterfeiting)

서지정보

· 발행기관 : 한국지식재산학회
· 수록지 정보 : 산업재산권 / 31호 / 351 ~ 388페이지
· 저자명 : 홍민지

초록

In recent years, the illegal Trademark Counterfeiting and counterfeit trademark goods have become a global issue. A so-called 'dead-copy goods',those are the infringements of the Trademark laws. In response, recently the major developed countries are pushing to 'Anti-Counterfeiting Trade Agreement (the following is a short designation, 'ACTA').
But now, we aren't prepare to conditions that demands from ACTA's standards, so our Trademark Law's criminal punishments and procedures have to change. At least in case of willful trademark counterfeiting on 'a commercial scale' should be applied to the criminal procedures and penalties.
For the answer to that, first of all, we have to divide between 'the general Trademark' and 'the serious infringements'. The serious infringements means that intentional counterfeiting on a commercial scale.
A commercial scale's meaning in public is that a for-profit or business act working systematic and on a large scale. Therefore, it is mainly required to define 'the serious trademark infringements' distinguishing from the general infringements including that 'a commercial scale', that is 'for-profit' and 'business of systematic and grand-scale'. Also to add to this, a matter of the distribution of counterfeit trademark goods might to be make a rule that include many type of after-attends acts to the trademark counterfeiting.
Therefore, we have to make a regulation on the ground of the principle of "nulla poena, nullum crimen sine lege" for definiteness and propriety of legality.

영어초록

In recent years, the illegal Trademark Counterfeiting and counterfeit trademark goods have become a global issue. A so-called 'dead-copy goods',those are the infringements of the Trademark laws. In response, recently the major developed countries are pushing to 'Anti-Counterfeiting Trade Agreement (the following is a short designation, 'ACTA').
But now, we aren't prepare to conditions that demands from ACTA's standards, so our Trademark Law's criminal punishments and procedures have to change. At least in case of willful trademark counterfeiting on 'a commercial scale' should be applied to the criminal procedures and penalties.
For the answer to that, first of all, we have to divide between 'the general Trademark' and 'the serious infringements'. The serious infringements means that intentional counterfeiting on a commercial scale.
A commercial scale's meaning in public is that a for-profit or business act working systematic and on a large scale. Therefore, it is mainly required to define 'the serious trademark infringements' distinguishing from the general infringements including that 'a commercial scale', that is 'for-profit' and 'business of systematic and grand-scale'. Also to add to this, a matter of the distribution of counterfeit trademark goods might to be make a rule that include many type of after-attends acts to the trademark counterfeiting.
Therefore, we have to make a regulation on the ground of the principle of "nulla poena, nullum crimen sine lege" for definiteness and propriety of legality.

참고자료

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