2011 Xing Zhi Kang Zi No. 8
|Decision No.||2011 Xing Zhi Kang Zi No. 8|
|Date||September 15, 2011|
As for the seizure regulations provided by criminal laws, either the principle of court-decided seizure or the principle of mandatory seizure is applicable. ´Court-decided seizure´ means that a court can rely on its own power to consider whether to order to seize the things that are possessed by the defendant and used for committing a crime, or gained from crimes. There are statutory examples, such as Article 38, Paragraph 1, Subparagraphs 2, 3, and Paragraph 3, front part of the Criminal Code. ´Mandatory seizure´ is divided into two categories, the principle of absolutely mandatory seizure and the principle of relatively mandatory seizure. The former means a statute that provides that ´a seizure order has to be granted no matter whether the suspect owns the things.´ Regarding those things, courts do not have a right to consider otherwise. Except for what has been proven to be lost, a seizure order has to be granted no matter whether the suspect owns the things or no matter whether the things have been caught. The latter means that things that are used for committing a crime or gained from a crime all have to be seized. But, this is limited to what belongs to either the defendants or conspiracy offenders. See Supreme Court 2004 Tai Shang Zi No. 2751 Decision Highlight. In addition, Article 83 of the Trademark Act provides, ´The products made, sold, presented, imported, or exported by committing the crimes defined in the preceding two articles, or the things, or documents, provided for services and uses by committing the crimes defined in the preceding two articles, have to be seized no matter whether they belong to the suspect.´ This kind of seizure is a rule of the principle of absolutely mandatory seizure. Except for what has been proven to be lost, a seizure order has to be granted no matter whether the suspect owns the things or no matter whether the things have been caught. (See Supreme Court 2008 Tai Shang Zi No. 2786.) Article 83 of the Trademark Act is a rule of ´seizure only.´ Though, the prosecutor issued a decision of not trying the defendant because of Article 252, Subparagraph 10 of the Code of Criminal Procedure. Caught products are counterfeit products, so according to Article 40, Paragraph 2 of the Criminal Code, an order to seize can be issued independently.
seizure, counterfeit products
|Relevant statutes||Article 83 of the Trademark Act|
- Release Date:2020-11-13