The role of confiscation in protection of intellectual property rights
DOI:
https://doi.org/10.31548/law2019.03.014Abstract
In practice, certain problems arise in determining the jurisdiction of administrative offenses cases when the sanction of a legal norm for violation of intellectual property rights is provided for by the use of several administrative penalties (in particular, confiscation and fines). However, administrative law allows for confiscation only of specific property: an object that became an instrument of commission or the direct object of an administrative offense, and money received as a result of such an offense.
Regulatory consolidation of types of administrative penalties, basic and additional established by the rules of articles KUpAP is investigated in the science of administrative law and is highlighted in the works: Yu P. P. Bytiak, V.V. Galunka, E.F. Demsky, O.V. Kuzmenko, VI Kuril, V.K. Kolpakov, T.O. Kolomoyets, S.G. Stetsenko and others. However, given the subject of our study, the issue of confiscation, which plays a significant role in the protection of intellectual property rights, is not sufficiently highlighted in legal science, which determines the relevance of this article.
The purpose of this article is to investigate the role of confiscation in the protection of intellectual property rights as well as the analysis of the relationship between the impact of the norms of various branches of law on the protection of the rights of owners and legitimate users of intellectual property rights.
In accordance with administrative law, sanctions in the form of confiscation measures may have both a basic and an additional character and may be imposed only when their application is expressly provided for by law. Before considering the issue of confiscation – as a form of protection of intellectual property rights in administrative law, first of all, consider the rules of the current legislation that regulate these issues. For today in the current legislative acts confiscation is provided by the norms of civil, economic, criminal, international, special, customs and administrative legislation.
Detail confiscation has been investigated in criminal law.The feature of administrative confiscation is that not all property and not any items are confiscated, but only things that are directly related to an administrative offense and are directly specified in the legal norm.
Administrative law confiscation, as a form of administrative punishment for violation of the proprietary rights of intellectual property, provided Art. Art. 51-2, 164-3, 164-6, 164-9 KUpAP. Confiscation of illegally manufactured products and equipment and materials that are intended for its manufacture.
According to articles 313-315 of the KUpAP, confiscated items are subject to a compulsory transfer of their free of charge to the property of the state, followed by their realization. Given that the confiscation order is pronounced only by a court, such a decision is executed by the state executor, where the enforcement proceedings are the final stage of the proceedings.
Summing up the above, one can conclude that the detection of violations of intellectual property rights and the timely imposition of administrative penalties, as well as the use of confiscation – as a special punitive measure by the state, which is used in court, helps to prevent and eliminate the causes and conditions that facilitate the commission of misconduct. and acts as an effective protection in the area of protecting the subjective rights of owners and legitimate users of intellectual property rights objects. To this end, the legislator must foresee the use of confiscation – as a special punitive measure by the state and in other special legislative acts designed to ensure the proper protection of intellectual property rights.
Keywords: confiscation, legislation, offences, objects, subjects of intellectual property rights
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