Administrative enforcement

New State Council Opinion on Improving Administrative/Criminal IPR Enforcement Coordination

On September 12 the State Council Standing Committee, chaired by Wen Jiabao, passed a new “Opinion on Concerning How to Improve The Work of Coordinating Administrative and Criminal Enforcement in Striking At IP Infringements and the Manufacture and Sale of Fake and Shoddy Goods”  关于做好打击侵犯知识产权和制售假冒伪劣商品工作中行政执法与刑事司法衔接的意见”.  The full text of this Opinion will likely need to await its gazetting in the State Council Gazette.  However, there have been plenty of press reports, and it seems possible at this point to construct a rough summary of what we will find in it:

(1) Administrative enforcement organs shall send suspected criminal cases to the public security organs at the corresponding level. Note: This doesn’t seem to be anything more than a reiteration of current law.
(2) Administrative enforcement organs who take complaints (presumably including hot line or similar complaint lines) shall immediately notified in writing to the public security organs at the same level, and send to the people’s procuratorate at the same level. After receiving notification,the public security organs shall immediately investigate and  decide whether to put on record investigation and notify the administrative law enforcement organs, and at the same time, the people’s procuratorate within 10 working days.  Note: This seems to be an effort at putting teeth into the various complaint and hot-line mechanisms.
(3) Public Security Bureaus, after investigation, shall timely transfer non-criminal infringement cases to administrative enforcement organs at the same level.  Note: This seems intended to address another problem of non-enforcement arising from refusals to “back-transfer” cases to administrative enforcement if criminal thresholds have not been satisfied.
(4) When circumstances are serious, administrative enforcement and public security agencies shall work together to find ringleaders and destroy crime chains. Note: This seems to be an effort to institutionalize team enforcement efforts, which have frequently worked successfully.
(5) If administrative enforcement authorities do not transfer cases suspected of being criminal,  the people’s governments at the corresponding level or the higher administrative law enforcement organs shall order the transfer. Supervisory personnel organs and judicial organs shall provide supervisory roles, including investigation for criminality due to failure to transfer in appropriate circumstances. Note: This is also an effort to put teeth into current responsibilities of various administrative agencies,
(6) When public security organs do not accept a transfer from an administrative agency, or delay beyond the statutory time limits, the administrative law enforcement organs can recommend that the people’s procuratorate supervise the case.
Having the State Council approve these efforts at strengthening administrative/criminal enforcement can lead to improved coordination of a system that has historically had difficulties coordinating among administrative enforcement agencies, the courts, prosecutors and police.

Here are some Chinese language links:

Mark Cohen

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