Criminal Law of the PRC (excerpts)

(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.

2 ，Judicial Interpretation by the Supreme People's Court and the Supreme People's Procuratorate on Several Issues of Concrete Application of Laws in Handling Criminal Cases of Infringing Intellectual Property (2004)

Judicial Interpretation 2004
http://www.cuippc.com     2008-03-14 13:43:46
Judicial Interpretation by the Supreme People's Court and the Supreme People's Procuratorate on Several Issues of Concrete Application of Laws in Handling Criminal Cases of Infringing Intellectual Property (2004)
(Adopted at the 1331 Session of the Judicial Committee of the Supreme People's Court on November 2, 2004 and the 28th Session of the Tenth Procuratorial Committee of the Supreme People's Procuratorate on November 11, 2004 and to be effective as of December 22, 2004.)
To punish criminal acts of infringing on intellectual property in accordance with law and to maintain the order of the socialist market economy, some concrete problems regarding law application to handling criminal cases involving infringement on intellectual property are hereby interpreted as follows in accordance with applicable provisions of the Criminal Law of the People's Republic of China ("the Criminal Law"):
Article 1 Using an identical trademark on the same merchandise without permission of its registered owner in any of the following circumstances falls under the definition of "the circumstances are serious" stipulated in Article 213 of the Criminal Law and shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined for committing the crime of forging registered trademarks:
(1) the amount of illegal business volume being more than RMB50,000 or that of illegal gains being more than RMB 30,000;
(2) forging more than two registered trademarks, the amount of illegal business volume being more than RMB 30,000 or that of illegal gains being more than RMB 20,000;
(3) other circumstances of a serious nature.
 
Whoever having any of the following acts that falls under the definition of "the circumstances are especially serious" stipulated in Article 213 of the Criminal Law shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined for committing the crime of forging registered trademarks:
(1) the amount of illegal business volume being more than RMB250,000 or that of illegal gains being more than RMB 1.50,000;
(2) forging more than two registered trademarks, the amount of illegal business volume being more than RMB 150,000 or that of illegal gains being more than RMB 100;000;
(3) other circumstances of an especially serious nature.

Article 2 Whoever knowingly sells commodities bearing counterfeited registered trademarks, if the amount of sales is more than RMB 50,000, and thus falls under the definition of "the amount of sales is relatively large" stipulated in Article 214 of the Criminal Law shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined for committing the crime of selling commodities bearing counterfeited registered trademarks.

Whoever selling such commodities of more than RMB 250,000 in value falls under the definition of "the amount of sales is huge" stipulated in Article 214 of the Criminal Law and shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined for the crime of selling commodities bearing counterfeited registered trademarks.

Article 3 Whoever forges or makes representations of another person's registered trademarks without authorization of the person or sells such representations in any of the following circumstances and thus falls under the definition of the circumstances are serious" stipulated in Article 215 of the Criminal Law shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance and shall also, or shall only, be fined for committing the crime of illegally making registered trademarks and selling illegally-made registered trademarks:

(1) the amount of the representations of other person's registered trademarks forged or made without authorization or that of the sold representations of other person's registered trademarks forged or made without authorization being more than 20,000 copies, or the amount of illegal business volume being more than RMB 50,000, or the amount of illegal gains being more than RMB 30,000;
(2) the amount of the representations of other person's registered trademarks forged or made without authorization or that of the sold representations of more than two of other person's registered trademarks forged or made without authorization being more than 10,000 copies, or the amount of illegal business volume being more than RMB 30,000, or the amount of illegal gains being more than RMB 20,000;
(3) other circumstances of a serious nature.

Whoever having any of the following acts that falls under the definition of "circumstances of an especially serious nature" stipulated in Article 215 of the Criminal Law shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined for committing the crime of illegally. making registered trademarks and selling illegally-made registered trademarks:

(1) the amount of the representations of other person's, registered trademarks forged or made without authorization or that of the sold representations of other person's registered trademarks forged or made without authorization being more than 100,000 copies, or the amount of illegal business volume being more than RMB 250,000, or the amount of illegal gains being more than RMB 150,000;
(2) the amount of the representations of other person's registered trademarks forged or made without authorization or that of the sold representations of more than two of other person's registered trademarks forged or made without authorization being more than 50,000 copies, or the amount of illegal business volume being more than RMB 150,000, or the amount of illegal gains being more than RMB 100,000;
(3) other circumstances of an especially serious nature.

Article 4 Whoever counterfeits the patent of another person in any of the following circumstances and thus falls under the definition of "the circumstances are serious" stipulated in Article 216 of the Criminal Law shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined for committing the crime of counterfeiting the patent of another person:

(1) the amount of illegal business. volume being more than RMB200,000 or hat of illegal gains being more than. RMB 100,000;
(2) causing direct economic loss of more than RMB 500,000 to theowner of patent;
(3) counterfeiting more than two patents, the. amount of illegal business volume being more than RMB 100,000, or that of illegal gains being more than RMB 50,000;
(4) other circumstances of a serious nature.

Article 5 Whoever, for the purpose of making profits, commits any of the acts of infringement on copyright mentioned in Article 217 of the Criminal Law, if the amount of illegal gains is more than RMB 30,000, and thus falls under the definition of "the amount of illegal gains is relatively large"; or whoever has any of the following acts and thus falls under the definition of "there are other serious circumstances" shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined for committing the crime of infringing on copyright:

(1) the amount of illegal business volume being more than RMB 50,000;
(2) reproducing and distributing more than 1,000 illegal copies of a written work, musical work, motion picture, television programme or other visual works, computer software or other works without permission of the copyright owner;
(3) other circumstances of a serious nature.

Whoever, for the purpose of making profits, commits any of the acts of infringement on copyright mentioned in Article 217 of the Criminal law, if the amount of illegal gains is more than RMB 150,000, and thus falls under the definition of "the amount of illegal gains is huge"; or whoever has any of the following acts and thus falls under the definition of "there are other especially serious circumstances" shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined for committing the crime of infringing on copyright:

(1) the amount of illegal business volume being more than RMB 250,000;
(2) reproducing and distributing more than 5,000 illegal copies of a written work, musical work, motion picture, television programme or other visual works, computer software or other works without permission of the copyright owner;
(3) other circumstances of an especially serious nature.

Article 6  Whoever, for the purpose of making profits, commits any of the acts stipulated in Article 218 of the Criminal Law, if the amount of illegal gains is more than RMB 100,000, and thus falls under the definition of "the amount of illegal gains is huge" shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also, or shall only, be fined for committing the crime of selling works reproduced by infringing on the copyright:

Article 7  Whoever commits any of the acts stipulated in Article 219 of the Criminal Law to cause losses of more than RMB 500,000 to the

obligee of business secrets and thus falls `gander the definition of "causing heavy losses to the obligee of business secrets" shall be sentenced to fixed-term imprisonment of riot more than three years or criminal detention and shall also, or shall' only, be-fined for committing the crime of infringing on business secrets.

Whoever causes losses of more than RMB 2.5 million to the obligee of business secrets and thus falls under the definition of "the consequences are especially serious" stipulated in Article 219 of the Criminal Law shall be sentenced to fixed term imprisonment of not less than three years but not more than seven years and shall also be fined for committing the crime of infringing on business secrets.

Article 8  "Identical trademarks" as stipulated in Article 213 of the Criminal Law refers to the trademarks either identical to the registered trademarks infringed on, or showing no notable visual difference from the trademarks infringed on and thus being misleading to the public.

"Use" as stipulated in Article 213 of the Criminal Law refers to such acts as applying registered trademarks or counterfeited registered trademarks to commodities; commodity packing and containers, commodity user guides and commodity transaction documents, or using registered trademarks or counterfeited registered trademarks for advertisement, publicity, exhibitions and other business activities.

Article 9  "Amount of sales" as stipulated in Article 214 of the Criminal Law refers to all the illegal incomes gained or ought to be gained by selling commodities bearing counterfeited registered trademarks.

Any of the following circumstances shall be regarded as falling under the definition of "knowingly" stipulated in Article 214 of the Criminal Law:

(1) Knowing that the registered trademarks on the commodities that he/she sells have been altered, replaced or covered;
(2) Selling the same commodities for which one has already been given administrative penalty or has borne civil responsibilities for selling commodities 'bearing counterfeited registered trademarks;
(3) Counterfeiting or altering the authorization documents of the registrant or knowing such documents have beery counterfeited or altered;
(4) Other circumstances in which the fact that the registered trademarks . borne by the commodities are counterfeited is known.

Article 10  Any of the following acts falls under the definition of "counterfeiting patent of. another person" stipulated in Article 216 of the Criminal Law:

(1) Citing patent number on the commodities or the packing of the commodities one, produces or sells without permission of the owner. of the patent;
(2) Citing patent. number in, advertisement, or other publicity material.s without. permission of the owner of, the patent so as to make people think that the involved technology is the patented technology of another person;
(3) Citing patent number in contract without permission of the owner of the patent so as to make people think that the involved technology in the contract is the patented technology of another person,
(4) Counterfeiting or altering the patent certificates, patent documents or patent application documents of another person.

Article11  The circumstances of charging directly or indirectly by such means as publishing paid advertisement fall under. the definition of "for the purpose of- making profits" stipulated. in. Article 217 of the Criminal Law:
"Without permission of the copyright owner" as stipulated in Article 217 of the Criminal 'Law refers to the circumstances where authorization . of the copyright owner is not obtained, the authorization. documents of the. copyright owner are altered or the authorization scope is exceeded.

Distributing a. written work, musical work, motion picture, television programme or other visual works, computer software or other works to the public by information network fails under the definition of "reproducing and distributing" stipulated in Article. 217 of the Criminal Law.

Article 12  “Illegal business volume" as stipulated in the Interpretation refers to the value of the products produced,.-stored, transported and sold by the doer in the course of infringing on intellectual property. Value of the products produced by infringing 'on intellectual property shall be computed according . to , the prices at.. which such products are actually sold. Value of the products produced by infringing on intellectual property produced, stored, transported, and those not sold shall be computed according to the labeled prices or the actual prices found to be sold at after investigation: Value of the products produced by infringing on intellectual property without labeled prices or whose actual prices are impossible to be ascertained shall be computed according the middle market prices of such products.

Values of illegal business volume, illegal gains and amount of sales shall be computed cumulatively in cases of repeatedly infringing on intellectual property where such acts have not yet been given administrative penalty or have not so far initiated criminal procedures.

"Copies" as stipulated in Article 3 of the Interpretation refers to one piece of representation of the complete logo of the trademark.

Article 13  Committing the crime of counterfeited registered trademarks stipulated in Article 213 of the Criminal . Law while selling commodities bearing such counterfeited registered trademarks and thus constituting a crime shall be convicted and punished in accordance.. with provisions of Article 213 of the Criminal Law for committing the crime of counterfeiting registered trademarks.

To whoever that commits the crime of counterfeiting registered trademarks stipulated in Article 213 of the Criminal Law while knowingly selling commodities bearing registered trademarks counterfeited by another person and thus constituting a crime, a combined punishment. for several crimes shall be applied.

Article 14  Committing the crime of infringing on copyright stipulated in Article 217 of thus constituting a crime shall be convicted and punished in accordance with provisions of Article 217 of the Criminal Law for committing the crime of infringing on copyright.

To whoever that commits the crime of infringing on copyright stipulated in Article 217 of the Criminal Law while knowingly selling works of other person reproduced by infringing on the copyright and thus constituting a crime, a combined punishment for several crimes shall be applied.

Article 15  Where a unit commits any of the crimes stipulated in the Articles 213 through 219 of the Criminal Law, it shall be convicted and sentenced according to the criteria that are three times as high as those for convicting and sentencing individuals committing same crimes according to the interpretation.

Article 16  Whoever knowingly provides loans, funds, bank accounts, invoices, certificates, licenses, production and operation places, as well as facilities and assistance in producing, storing and import-export agency services shall be deemed an accomplice in the crime of infringing on intellectual property.

Article 17  Should discrepancies arise between the Interpretation and other judicial interpretations promulgated. previously regarding infringement on intellectual property, the previously promulgated interpretations shall not be applied after the interpretation goes into effect.