商标侵权案件行刑衔接的问题与完善——基于“分装厂案”展开分析
To Improve the Problem of Trademark Infringement Case Transferred from Administrative Organs to Criminal Organs—Analysis Based on Sub-Packaging Factory Case

笔者通过亲身经历执法前沿的商标侵权案例，发现行政执法现状是在执法中更多偏向考虑侵权当事人利益的审慎审查原则，不加重侵权当事人负担的原则，直接导致行政向司法移送率极低的结果，以及“数量多，个头小”的表象，甚至即使移交，也因证据不足等存疑或案值不高情况显著轻微而不起诉。笔者通过结合研究相关法律规定和实践认为，为了改善这些现象，以及解决这些现象所带来的问题，公安机关如能充分发挥现场勘验功能、在执法现场对取证、侵权认定、案值认定等流程把关是关键一环，对执法监督制约的刚性以及对“移送”“立案”的考核激励也至关重要。
Through personal experience of trademark infringement cases at the front, the author found that the current situation of administrative law enforcement is that the principle of careful review by administrative organs is more inclined to the interests of the infringing parties and the principle of not increasing the burden of the infringing parties. In terms of evidence collection, infringement identification and case value identification, the organs chooses a way more conducive to the infringing parties, which directly leads to the extremely low rate of case transfers from administrative organs to criminal organs. Even if in a transferred case, the judicial organ would not prosecuted the infringing parties due to insufficient evidence or low case value, although the quantity of the infringing products is huge but with small size. Through studying and researching relevant legal provision and practice, the author believes that in order to improve the phenomena and solve the problems, the on-site inspection ability of pubic security organs is a key link, for example, evidence obtaining, infringement identification and case value identification. It is also very important to the rigidity of law enforcement supervision and restriction as well as the assessment and incentive of “transfer” and “filing”.