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Duties and Functions

  • Publication Date:
  • Last updated:2024-04-15
  • View count:486

I. Territorial Jurisdiction

Pursuant to Paragraph 1, Article 5 of the Intellectual Property and Commercial Court (IPCC) Organization Act: "The Taiwan High Prosecutors Office, Intellectual Property Branch shall be set up as the corresponding authority of the Intellectual Property and Commercial Court.” In Paragraph 2 of Article 5, it prescribes that, “Prosecutors of the Prosecutors Office of district courts and branches thereof handle criminal cases prescribed in Subparagraphs 2 and 4 of Article 3; the Chief Prosecutor of the immediately supervising Prosecutors Office shall be the Chief Prosecutor of the Taiwan High Prosecutors Office, Intellectual Property Branch.” The jurisdiction of the IPCC covers 22 District Courts, which is nationwide. The jurisdiction of the Taiwan High Prosecutors Office (THPO) covers only 20 District Prosecutors Offices, and the other two are covered by the Kinmen Branch and Fujian High Prosecutors Office. To correspond with the IPCC and in accordance to Article 5 of the IPCC Organization Act mentioned above, the jurisdiction of the IP Prosecutors Office (THPO-IPB) includes 22 District Prosecutors Offices, which surpasses the jurisdiction of the THPC.

All IP criminal cases are handled by the IPCC nationwide, and the THPO-IPB prosecutors are required to appear in IPCC to fulfill their prosecution duties. The cases that are applied for reconsideration following non-prosecution decision or deferred prosecution decision made by district prosecutors nationwide, are reviewed by the THPO-IPB. Therefore, the THPO-IPB – the superior authority of the district prosecutor offices regarding IP-related cases – has the whole Taiwan area as its territorial jurisdiction so that the goal of specialization and unification can be ensured.

II. Case Jurisdiction 事務管轄

A.Amendments
The Intellectual Property and Commercial Court Organization Act (hereinafter referred to as “the Organization Act”) was amended on April 26, 2023 and the Intellectual Property Case Adjudication Act (hereinafter referred to as “the IP Case Adjudication Act”) was amended on February 15, 2023. Both Acts came into effect on August 30, 2023.
The National Security Act was amended on June 8, 2022, adding "Crimes Against Trade Secrets of National Core Key Technologies" (Paragraph 1, Article 3) and "Crimes of Extraterritorial Use of National Key Technologies" (Paragraph 2, Article 3). Paragraphs 3, 4, and 5 in Article 3 of the Act were put into force on April 28, 2023. Paragraph 4 in Article 3 of the Act prescribes that “The procedure for determination and other regulations for matters to be complied in respect of the national core key technologies under the preceding paragraph shall be prescribed by National Science and Technology Council after consulting with relevant authorities.” On December 5, 2023, the National Science and Technology Commission (NTC) announced the "National Core Key Technologies" list, as the Executive Yuan was announced simultaneously, and Paragraphs 1 and 2 of Article 3, and related provisions of the National Security Act were completely implemented.

B.The jurisdiction of the THPO-IPB (the Organization Act, the IP Case Adjudication Act and the National Security Act) includes:

  1. Offences against agriculture, industry, and commerce under Articles 253 and 254 of the Criminal Code (Paragraph 2, Article 3 of the Organization Act; note that Article 255 of the Criminal Code is no longer included);
  2. Offenses against privacy under Article 317 and 318 of the Criminal Code (Paragraph 2, Article 3 of the Organization Act);
  3. Violations of the Trademark Act, Copyright Act, and violations of breaching the investigation confidentiality protective order under Article 14-4 of the trade secrets Act (Paragraph 2, Article 3 of the Organization Act);
  4. Violations of the first instance criminal cases under Article 13-1, 13-2, 13-3, and 13-4 of the Trade Secrets Act (Paragraph 2, Article 3 of the Organization Act);
  5. Violations of the first instance criminal cases under Paragraph 1, 2, and 3, Article 8 of the National Security Act (Paragraph 2, Article 3 of the Organization Act; Paragraph 2, Article 9 of the National Security Act);
  6. Violations of breaching the confidentiality preservation order issued by court (Paragraph 2, Article 3 of the Organization Act; Article 72 and 73 of the IP Case Adjudication Act);
  7. Violations of breaching the investigation confidentiality protective order under Article 10 of the National Security Act (Paragraph 4, Article 3 of the Organization Act; Article 10 of the National Security Act);
  8. Offences of an expert witness appointed by the court to verify evidence committing 1) a false statement on a matter material to the case at a trial, before or after signing an affidavit, or 2) an unauthorized reproduction, usage, or disclosure of a trade secret known from the verifying proceedings (Paragraph 2, Article 3 of the Organization Act; Article 74 of the IP Case Adjudication Act);
  9. Other cases prescribed by law or determined by the Judicial Yuan to be within the jurisdiction of the Intellectual Property and Commercial Court (Paragraph 4, Article 3 of the Organization Act).

The following are related jurisdiction cases:

  1. Other criminal cases associated with the cases of Paragraph 2 and 4, Article 3 of the Organization Act, and prescribed by Paragraph 1, Article 7 of the Code of Criminal Procedure, and that have been tried jointly in the district court and appealed jointly to the second instance of IPC( Paragraph 2 of Article 58, and Paragraph 1 of Article 54 of the IP Case Adjudication Act);
  2. Other criminal cases associated with the cases of Article 13-1, 13-2, 13-3, and 13-4 of the Trade Secrets Act, and prescribed by Paragraph 1, Article 7 of the Code of Criminal Procedure, and that have been tried jointly in the district court and appealed jointly to the first instance of IPC (Paragraph 3 of Article 54 of the IP Case Adjudication Act);
  3. Other criminal cases associated with the cases of Paragraph 1, 2, and 3, Article 8 of the National Security Act, and prescribed by Paragraph 1, Article 7 of the Code of Criminal Procedure, and that are being investigated by THPO-IPB and initiating a prosecution jointly to the first instance of IPPC(Paragraph 3 of Article 18 of the National Security Act) .

The related jurisdiction diversifies the cases handled by the THPO-IPB (especially on the duty of the public prosecution at trial). For example, not only cases of fraud (selling counterfeits), forgery (false trademark on a document or credit card), sex offenses (pornographic discs), embezzlement, breach of trust, offences against reputation and credit, and offences against the computer security being dealt within THPO-IPB, but also some other offences regulated in special criminal laws, such as violations against the Pharmaceutical Affairs Act or Narcotics Hazard Prevention Act (counterfeit trademark on the pills), violations against the Organized Crime Prevention Act (organized IP infringement cases), violations against The Smuggling Penalty Act (importing counterfeit goods). Furthermore, cases on food safety or consumer protection sometimes are also assigned to THPO-IPB, when there are false marks or indications on the merchandise, and when related to the offences under Article 255 of the Criminal Act (Note that after the amendment of Paragraph 2, Article 3 of the Organization Act, the offence under Article 255 of the Criminal Act is no longer an IP criminal case as mentioned above.)

III. Duties  

A.Conducting investigations and initiating public prosecutions
Prior to the  amendments to the laws aforementioned, prosecutors of the THPO-IPB did not rule out investigation by themselves; however, the investigation – including issuing Prosecutors’ Orders – of IP and IP-related crimes was conducted mainly by the prosecutors in the District Prosecutors Offices.
In accordance to the newly amended Paragraph 1, 2, and 3, Article 8 of the National Security Act, the "Crimes Against Trade Secrets of National Core Key Technologies" (Paragraph 1, Article 3) and "Crimes of Extraterritorial Use of National Key Technologies" (Paragraph 2, Article 3) are investigated by prosecutors of the THPO-IPB. Therefore, conducting investigations and initiating public prosecutions has become one of the THPO-IPB’s main tasks.

B.Implementing public prosecution
The major task of the prosecutors of THPO-IPB is to conduct public prosecution at the IPCC, accept and scrutinize the judgments, and file appeals to the Supreme Court when needed.
After the amendments to the laws mentioned above, the IP Criminal Court (IPC) in IPCC has divided into two levels.  Also, in addition to the original court of second instance, IPC is the court of first instance as well, making the duty of implementing public prosecution by THPO-IPB more varied.

  1. The first level of IPC, the first instance cases
    Cases as outlined in Section II, Subsection B, item 4 and 11 above.
  1. The second level of IPC, the second instance cases.
    (a) Cases as outlined in Section II, Subsection B above; except for items 4 and 11, as well as items 5 and 12.
    (b) Appeal cases of Section II, Subsection B, items 4 and 11 above
  1. The second level of IPC, the first instance case.
    Cases as outlined in Section II, Subsection B, item 5 and 12 above.

C.Handling of reconsideration cases
The THPO-IPB is also the superior authority of the District Prosecutor Offices regarding IP criminal cases, and another major task is to review the rulings of non-prosecution or deferred prosecution determined by the district prosecutors. The results will either be dismissed, ordered to be reinvestigated, or in very rare situations, the IP Prosecutors Branch will order the initiation of a prosecution.   

D.Business Supervision and Coordination
In addition to supervising the IP affairs of the District Prosecutors Offices, the THPO-IPB has a "Coordination and Supervisory Working Group on combating IPR infringements” which is convened by the Chief Prosecutor to coordinate the Intellectual Property Office of the Ministry of Economy, the Ministry of Education, National Communications Commission, Customs Administration of the Ministry of Finance, National Police Agency of the Ministry of the Interior, the Investigation Bureau of the Ministry of Justice and the Public Prosecutors Offices. Using various administrative measures, criminal prosecution, education propaganda, this working group solves problems, strengthens cooperation, and detects illegal acts so as to ensure the IPR protection.

E.Research and Training
Prosecutors of the THPO-IPB study legal issues from time to time, put forward law enforcement precautions and reference standards. We drew up "Plea Sentence Guideline for IPR criminal cases,” "Set-Top Box Enforcement Standards,” and participated in drafting “The Precautions of Handling Serious Trade Secret Infringement Cases” directed by the Ministry of Justice.
Our task is also to host or attend domestic, international or cross-strait seminars, workshops or conferences on IPR issues.
Prosecutors went abroad to study the development and practical operation of the IP legal system in Europe and the United States and put forward research reports. Through research and dialogue between the judicial, administrative and industrial sectors, prosecutors obtained new information, combined theory and practice, and refined the handling of cases.

F.International and Cross-Strait Exchanges and Cooperation
IP cases often have cross-border aspects so that international and cross-strait law enforcement exchanges and cooperation are necessary. In practice, the United States and Mainland China are the major counter partners.
Taiwan and the United States signed a mutual legal assistance agreement on criminal matters in 2002. The MOJ and U.S. DOJ are the assigned representatives; the operation is stable and smooth. In February 2017, the Taipei Economic and Cultural Representative Office in the U.S. and the American Institute in Taiwan signed the “Memorandum of Understanding on Intellectual Property Rights Enforcement Cooperation” to strengthen cooperation, to combat intellectual property infringement and trade fraud. The THPO-IPB was designated as the contact point of the MOU.
In October 2018, through consultation, Taiwan and the U.S. completed the "implementation of Taiwan-U.S. anti-digital piracy work plan" to strengthen law enforcement cooperation on overseas digital infringement.
The THPO-IPB often interacts with foreign law enforcement partners. Before making a formal mutual legal assistance request or conducting a joint investigation, it is usual to have advanced discussions, exchange opinions, build up consensus and trust and then collaborate. In addition to seeking mutual legal assistance with Mainland China in accordance with the cross-strait agreement, the mainland procuratorate have also organized delegations to visit the THPO-IPB since 2019 to exchange IP protection issues(for more information, please refer to the “Hot News” section).

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