The Attorney General's Case | Solve the criminal and civil prosecution of intellectual property rights in an integrated manner

Taking advantage of the Nanjing Railway Procuratorate's centralized jurisdiction over intellectual property cases in Nanjing, we organized the "4+" case handling team to conduct research on seven courts with jurisdiction over intellectual property cases in the city, and initially clarified the root cause of the difficulty of rights holders in protecting their rights.

The survey found that the handling of intellectual property criminal cases and civil compensation claims by the basic courts follows the principle of criminal cases before civil cases. In other words, only after the criminal case is disposed of can the right holder file a separate civil lawsuit against the defendant for compensation. In the process of initiating a separate civil lawsuit, the right holder may also face a variety of practical difficulties, such as difficulties in obtaining evidence in criminal case files, low enthusiasm for compensation by the defendant, and difficulties in enforcing judgments. For the rights holder, a case goes through two judicial procedures, criminal and civil, and may also go through multiple trial levels such as first instance, second instance, and retrial, and the cycle and cost of rights protection increase exponentially. The civil litigation procedure attached to the criminal case is applicable to material damages, and the court will not accept the case if the material loss cannot be calculated.

During the investigation, it was also found that the handling of intellectual property criminal cases by various grassroots courts is more obvious than that of liberty punishment, and the trend of light suspended sentences is more obvious, and whether or not the criminal fine can be paid in time is often taken as an important criterion for considering the defendant's attitude towards admitting guilt, and there is a strange phenomenon that the defendant reserves property for payment of fines instead of compensation, which further aggravates the difficulty of rights holders to protect their rights.

Based on the analysis of the survey results, after several case discussions by the "4+" case handling team, we determined a solution to coordinate and communicate with the grassroots courts to guide the right holder to file a criminal attached civil lawsuit to solve the dilemma of this case.

At first, the comrades of the court also had concerns, believing that there were different voices in theory and that there was still a lack of judicial practice. I led a team to communicate and negotiate with the court on several occasions, explained the dilemma of rights protection in this case and the advantages of the integrated criminal and civil resolution path, and responded to several concerns raised by the court. After negotiations, the court finally adopted our opinion and agreed that the right holder should file a civil lawsuit attached to the criminal case, and the right holder's claim for civil compensation should be included in the criminal procedure and handled together.

After the court accepted the request for a civil lawsuit attached to the criminal case, at the pretrial conference, I fully explained to the defendant Kang Moumou, who did not admit guilt, the important role of civil compensation understanding in criminal sentencing, and led the right holder and the defendant to reach an agreement on compensation and understanding on civil compensation. In the end, the six defendants agreed to compensate the rights holder for a total loss of RMB 700,000, and the court prepared a mediation agreement to confirm it. On the basis of recommending a sentence of fixed-term imprisonment, I adjusted the sentencing recommendation leniently based on the rights holder's understanding, and facilitated the defendant Kang XX to voluntarily admit guilt and accept punishment in court, and sincerely repent and apologize to the rights holder.

On June 29, 2023, after our court initiated a public prosecution, the court sentenced the six defendants to fixed-term imprisonment ranging from three years and five months to one year and one month for the crime of counterfeiting registered trademarks and selling goods with counterfeit registered trademarks, and a total fine of RMB 2.25 million, and the withdrawal of all illegal gains.

After the rights holder and the defendant reached an understanding of civil compensation, I communicated with Ms. Cao in person, and she expressed her gratitude for our proactive actions: "We used to defend our rights in other places, and similar cases are now in the second instance of civil lawsuits, and it has not yet been over. ”

Later, I discussed with the comrades of the "4+" case-handling team that we should give full play to the initiative of the procuratorial organs in the protection of intellectual property rights, and use this case as a breakthrough point to popularize the experience and practices in this case throughout the city. With the unremitting efforts of the comrades of the "4+" case-handling team, we are currently establishing a normalized mechanism for resolving criminal prosecution and civil liability in Nanjing intellectual property criminal litigation, so that the right holder can receive compensation and the defendant can receive lenient punishment, blunt social contradictions, repair economic relations, and achieve good results of both the defendant and the right holder thanking the judicial authorities. This approach has been affirmed and supported by the Nanjing Municipal Procuratorate and the Provincial Procuratorate.