假冒专利罪的适用困惑及出路——基于法秩序统一原理
The Confusion and Way out of the Application of Counterfeit Patent Crime—Based on the Principle of Unity of Legal Order

自假冒专利罪确立至今，该罪的适用率一直极低，被评价为象征性立法，而对专利侵权案件多认定为行政违法，“以罚代刑”的现象严重阻碍了国家对专利的管理秩序以及市场的公平竞争秩序，因此要对“以罚代刑”现象进行限制，不能无限度压缩刑法的适用空间，有效协调前置法和后置法管辖范围，坚持法秩序统一原理。另外也要对假冒专利罪存在的问题加以明确。首先要解决的是由于法条中对该罪所保护的法益规定较为简单，导致司法适用及学界对法益具体内容多有争议，应对法益具体内容进行明确。其次应当将该罪的客观方面在不同法律规定中统一化，改善当前各种规定冲突的现状。再次该罪的立案数额普遍高于其他同类型的罪名，不利于适用该罪进行及时有效的震慑以及预防再次犯罪，应结合其他罪名以及具体案件金额降低其入罪数额。最后，对专利权刑法保护的体系化构建提出设想，以期更严密地保护专利权。
Since the establishment of the crime of patent counterfeiting, the application rate of this crime has been extremely low, which is evaluated as symbolic legislation, and patent infringement cases are mostly identified as administrative violations. The phenomenon of “substituting punishment for punishment” seriously hinders the national management order of patents and the fair competition order of the market. Therefore, the phenomenon of “substituting punishment for punishment” should be restricted, and the application space of criminal law should not be indefinitely reduced. Effectively coordinate the jurisdiction of the pre-law and the post-law, and adhere to the principle of unity of legal order. In addition, it is necessary to clarify the problems existing in the crime of counterfeit patent. The first thing to be solved is that the legal interest protected by the crime in the law is relatively simple, which leads to many disputes on the specific content of legal interest in judicial application and academic circles, and the specific content of legal interest should be clarified. Secondly, the objective aspects of the crime should be unified in different legal provisions to improve the current situation of the conflict of various provisions. The amount of this crime is generally higher than other charges of the same type, which is not conducive to the application of this crime for timely and effective deterrence and prevention of recrime, and should be combined with the amount of other charges and specific cases to reduce the amount of its crime. Finally, this paper puts forward some ideas about the systematization of patent protection in criminal law, so as to protect the patent right more closely.