|
Criminal Laws and Regulations in Relation to Intellectual Property |
Criminal Law of the
People's Republic of China
(Adopted by the Second
Session of the Fifth National People's Congress on July 1, 1979 and amended
by the Fifth Session of the Eighth National People's Congress on March 14,
1997)
Part II
Special Provisions
Chapter
III Crimes of Undermining the Order of Socialist Market Economy
Section 1.
Crimes of Manufacturing and Selling Fake and Shoddy Goods
Article
140. Any producer or seller who mixes up or
adulterates products, passes fake imitations for genuine, sells seconds at best
quality price, or passes unqualified products as qualified ones, with a sale
amount of not less than 50,000 yuan and not more than 200,000 yuan, is to be
sentenced to not more than two years of fixed-term imprisonment or criminal
detention and may in addition or exclusively be sentenced to a fine of not less
than 50 percent and not more than 200 percent of the sale amount; when the sale
amount is not less than 200,000 yuan and not more than 500,000 yuan, is to be
sentenced to not less than two years and not more than seven years of
fixed-term imprisonment and may in addition be sentenced to a fine of not less
than 50 percent and not more than 200 percent of the sale amount; when the sale
amount is not less than 500,000 yuan and not more than 2 million yuan, is to be
sentenced to not less than seven years and may in addition be sentenced to a
fine of not less than 50 percent and not more than 200 percent of the sale
amount; when the sale amount is not less than two million yuan, is to be
sentenced to 15 years of fixed-term imprisonment or life imprisonment and may
in addition be sentenced to a fine of not less than 50 percent and not more
than 200 percent of the sale amount or confiscation of property.
Article
141. Whoever produces or sells fake medicines which
are sufficiently able to seriously endanger human health is to be sentenced to
not more than three years of fixed-term imprisonment or criminal detention and
may in addition or exclusively be sentenced to a fine of not less than 50
percent and not more than 200 percent of the sale amount; when causing serious
harm to human health, is to be sentenced to not less than three years and not
more than ten years of fixed-term imprisonment and may in addition be sentenced
to a fine of not less than 50 percent and not more than 200 percent of the sale
amount; when causing death or particular harm to human health, is to be
sentenced to not less than ten years of fixed-term imprisonment, life
imprisonment, or death penalty and may in addition be sentenced to a fine of
not less than 50 percent and not more than 200 percent of the sale amount or
confiscation of property.
The fake
medicines referred to in this article mean those fake medicines as well as
those medicines and non- medicines that fall into such a category as to be
dealt with as fake medicines in accordance with the regulations of the
"Law of the PRC Governing the Management of Pharmaceutical Products."
Article
142. Whoever produces, sells inferior medicines,
thereby causing severe harm to human health is to be sentenced to not less than
three years and not more than ten years of fixed-term imprisonment and may in
addition be sentenced to a fine of not less than 50 percent and not more than
200 percent of the sale amount; when the consequences are particularly serious,
the sentence is to be not less than ten years of fixed-term imprisonment and
may in addition be sentenced to a fine of not less than 50 percent and not more
than 200 percent of the sale amount or confiscation of property.
The
inferior medicines referred to in this article mean those inferior pharmaceutical
products that fall into the category of inferior medicines in accordance with
the regulations of the "Law of the PRC Governing the Management of
Pharmaceutical Products."
Article
143. Whoever produces, sells foods that do not
conform with hygienic standards which sufficiently gives rise to food poisoning
accidents or other severe food- originated diseases is to be sentenced to not
more than three years of fixed-term imprisonment and may in addition or
exclusively be sentenced to a fine of not less than 50 percent and not more
than 200 percent of the sale amount; when causing serious harm to human health,
the sentence is to be not less than three years and not more than seven years
of fixed-term imprisonment and may in addition be sentenced to a fine of not
less than 50 percent and not more than 200 percent of the sale amount; when the
circumstances are particularly serious, to be not less than seven years of
fixed-term imprisonment or life imprisonment and may in addition be sentenced
to a fine of not less than 50 percent and not more than 200 percent of the sale
amount or confiscation of property.
Article
144. Whoever produces, sells foods that are mixed
with poisonous or harmful non-food materials or knowingly sells such things is
to be sentenced to not more than five years of fixed-term imprisonment or
criminal detention and may in addition or exclusively be sentenced to a fine of
not less than 50 percent and not more than 200 percent of the sale amount; when
causing serious food poisoning accidents or other serious food-originated
diseases and giving rise to serious harm to human health, the sentence is to be
not less than five years and not more than ten years of fixed-term imprisonment
and may in addition be sentenced to a fine of not less than 50 percent and not
more than 200 percent of the sale amount; when causing death or particularly
harm to human health, is to be punished in accordance with article 141 of the
law.
Article
145. Whoever produces medical apparatus and
instruments, and clinic-use sanitary materials which do not conform with the
standards of the state and the trade aiming at protecting human health or
knowingly sells such things, thereby giving rise to serious harm to human
health is to be sentenced to not more than five years of fixed-term
imprisonment and may in addition be sentenced to a fine of not less than 50
percent and not more than 200 percent of the sale amount; when the consequences
are particularly serious, the sentence is to be not less than five years and not
more than ten years of fixed-term imprisonment and may in addition be sentenced
to a fine of not less than 50 percent and not more than 200 percent of the sale
amount; when the circumstances are particularly odious, the sentence is to be
not less than ten years of fixed-term imprisonment or life imprisonment and may
in addition be sentenced to a fine of not less than 50 percent and not more
than 200 percent of the sale amount or confiscation of property.
Article
146. Whoever produces electrical appliances,
pressure containers, explosive and combustible products that do not conform
with the standards of the state and the trade aiming to protect the human
safety and property or other products that do not conform with such standards
or knowingly sells the above-mentioned products thereby giving rise to serious
consequences is to be sentenced to not more than five years of fixed-term
imprisonment and may in addition be sentenced to a fine of not less than 50
percent and not more than 200 percent of the sale amount; when the consequences
are particularly serious, the sentence is to be not less than five years of
fixed-term imprisonment and may in addition be sentenced to a fine of not less
than 50 percent and not more than 200 percent of the sale.
Article
147. Whoever produces fake insecticides, fake
animal-use medicines, fake chemical fertilizers or knowingly sells
insecticides, animal-use medicines, chemical fertilizers and seeds which are
fake or are no longer effective or any producer or seller who passes unqualified
insecticides, animal-use medicines, chemical fertilizers and seeds as qualified
ones, thereby giving rise to relatively large losses in production is to be
sentenced to not more than three years of fixed-term imprisonment or criminal
detention and may in addition or exclusively be sentenced to a fine of not less
than 50 percent and not more than 200 percent of the sale amount; when causing
grave losses in production, is to be sentenced to not less than three years and
not more than seven years of fixed-term imprisonment and may in addition be
sentenced to a fine of not less than 50 percent and not more than 200 percent
of the sale amount; when causing particularly grave losses in production, is to
be sentenced to not less than seven years of fixed-term imprisonment or life
imprisonment or confiscation of property.
Article
148. Production of cosmetics that fails to meet
hygienic standards or knowingly selling such cosmetics that cause serious
consequences shall be punished with imprisonment or criminal detention of less
than three years, and a fine of over 50 percent but less than 100 percent of
the sales amount.
Article
149. The production and selling of products
prescribed under Articles 141 to 148 of this Section that does not constitute
an offense under these articles but with sales amount exceeding 50,000 yuan,
shall be convicted and punished according to provisions under Article 140 of
this Section.
The
production and selling of products prescribed under Articles 141 and 148 of
this Section that constitutes an offense under these articles and Article 140,
shall be convicted and punished under provisions carrying a heavier penalty.
Article
150. Units violating provisions between Articles
140 and 148 of this Section shall be punished with a fine, with personnel
directly in charge and other directly responsible personnel being punished
according to provisions under the respective articles.
Section 7.
Infringement of Intellectual Property Rights
Article
213. Using an identical trademark on the same
merchandise without permission of its registered owner shall, if the case is of
a serious nature, be punished with imprisonment or criminal detention of less
than three years, with a fine, or a separately imposed fine; for cases of a
more serious nature, with imprisonment of over three years and less than seven
years, and with fine.
Article
214. Knowingly selling merchandise under a faked
trademark with a relatively large sales volume shall be punished with
imprisonment or criminal detention of less than three years, with a fine or a
separately imposed fine; in cases involving a large sales volume, with
imprisonment of more than three years but less than seven years, and with fine.
Article
215. Forging or manufacturing without authority or
selling or manufacturing without authority other's registered trademarks or
identifications shall, for cases of a serious nature, be punished with
imprisonment or criminal detention, or restriction for less than three years,
with a fine or a separately imposed fine; for cases of a especially serious
nature, with imprisonment of over three years and less than seven years, and
with fine.
Article
216. Whoever counterfeits other people's patents,
and when the circumstances are serious, is to be sentenced to not more than
three years of fixed-term imprisonment, criminal detention, and may in addition
or exclusively be sentenced to a fine.
Article
217. Whoever, for the purpose of reaping profits,
has committed one of the following acts of copyright infringement and gains a
fairly large amount of illicit income, or when there are other serious
circumstances, is to be sentenced to not more than three years of fixed-term
imprisonment, criminal detention, and may in addition or exclusively be
sentenced to a fine; when the amount of the illicit income is huge or when
there are other particularly serious circumstances, he is to be sentenced to
not less than three years and not more than seven years of fixed-term
imprisonment and a fine:
(1) copy
and distribute written, musical, movie, televised, and video works; computer
software; and other works without the permission of their copyrighters;
(2)
publish books whose copyrights are exclusively owned by others;
(3)
duplicate and distribute audiovisual works without the permission of their
producers;
(4)
produce and sell artistic works bearing fake signatures of others.
Article
218. Whoever, for the purpose of reaping profits,
knowingly sells the duplicate works described in Article 217 of this Law, and
gains a huge amount of illicit income, is to be sentenced to not more than
three years of fixed-term imprisonment, criminal detention, and may in addition
or exclusively be sentenced to a fine.
Article
219. Whoever engages in one of the following
activities which encroaches upon commercial secrets and brings significant
losses to persons having the rights to the commercial secrets is to be
sentenced to not more than three years of fixed-term imprisonment, criminal
detention, and may in addition or exclusively be sentenced to a fine; or is to
be sentenced to not less than three years and not more than seven years of
fixed-term imprisonment and a fine, if he causes particularly serious
consequences:
(1)
acquire a rightful owner's commercial secrets via theft, lure by promise of
gain, threat, or other improper means;
(2)
disclose, use, or allow others to use a rightful owner's commercial secrets
which are acquired through the aforementioned means;
(3)
disclose, use, or allow others to use, in violation of the agreement with the rightful
owner or the rightful owner's request of keeping the commercial secrets, the
commercial secrets he is holding.
Whoever
acquires, uses, or discloses other people's commercial secrets, when he knows
or should know that these commercial secrets are acquired through the
aforementioned means, is regarded as an encroachment upon commercial secrets.
The
commercial secrets referred to in this article are technical information and
operation information that are unknown to the public, can bring economic profits
to their rightful owners, are functional, and are kept as secrets by their
rightful owners.
The
rightful owners referred to in this Article are owners of the commercial
secrets and users who have the permission of the owners.
Article 220. When a unit commits the crimes stated in Article 213 through Article 219, it is to be sentenced to a fine; its directly responsible person in charge and other personnel of direct responsibility should be punished in accordance with the stipulations respectively stated in these Articles of this section.