Duties and Functions
- Publication Date：
- Last updated：2022-07-27
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The forepart of Article 5, Paragraph 1 of the Intellectual Property and Commercial Court Organization Act stipulates that "The Taiwan High Prosecutors Office, Intellectual Property Branch shall be set up as the corresponding authorities of the Intellectual Property and Commercial Court". In Article 5 Paragraph 2, 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.” Therefore, the territorial jurisdiction of THPO-IPB exceeds that of the THPO and its subordinate prosecutors offices, to include the areas of Kinmen and Lienchiang in Fukien. The IP criminal cases that are appealed to the IPCC after a verdict was made by district court, the procurator of the THPO-IPB shall carry out their prosecution duties of the second instance. The cases that are applied for reconsideration following non-prosecution decision or deferred prosecution decision made by district prosecutors, are reviewed by THPO-IPB.
The THPO-IPB, the superior authority of the district prosecutor offices regarding IP related cases, has the whole Taiwan area as its geographical jurisdiction, so that the goal of specialization and unification can be ensured.
The jurisdiction of the THPO-IPB includes the following matters: (1) offences against agriculture, industry, and commerce under Articles 253 to 255 of the Criminal Code, (2) offenses against privacy under Article 317 and 318 of the Criminal Code, (3) violations of the Trademark Act, Copyright Act, and Trade Secrets Act, (4) violations of breaching the confidentiality preservation order under Section 1 of Article 35 and Section 1 of Article 36 of the IP Case Adjudication Act, (5) any offences related to the aforementioned cases, adjudicated or handled simultaneously with the anterior IP related cases by the court or prosecutor (i.e. related jurisdiction).
The related jurisdiction diversifies the cases handled by the THPO-IPB. For example, not only have 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 been dealt with in 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.
The focus of THPO-IPB responsibilities includes implementing prosecutions in the court, reviewing reconsideration cases, business supervision, education and training, research on legal issues, and international and cross-strait exchanges and cooperation.
Characteristics of Intellectual Property Cases
2. Highly specialized
3. Ever-Changing Crime Patterns
4. Cross-Border Crimes Requires Judicial Cooperation.
Official Responsibilities- Second Trial Public Prosecution and Reconsideration Cases
As the THPO-IPB was set up in response to the IPCC, the prime jobs of the prosecutors here are to conduct the second trial public prosecution at the IPC, accept and scrutinize the judgments, and file appeals or interlocutory appeals to the Supreme Court when needed. The THPO-IPB is also the superior authority of the district prosecutor offices regarding IP related cases, and another major task is to review the rulings of non-prosecution or deferred prosecution determined by the district prosecutors.
Business Ssupervision 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.
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.
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.
In order to facilitate the business contacts and the movement of personnel to and from their offices, the THPO-IPB looked for a premises near the Taiwan High Prosecutors Office when it was established. In coordination with the National Communications Commission (NCC) and the National Property Administration, the NCC agreed to provide the fifth floor of its Northern Region Affairs Department Building for use by the THPO-IPB.
The old office was located on the southern edge of the Boai Special Administrative Region, next to the Chongxi Gate (Xiaonanmen, Small South Gate) of the ancient Taipei City. The inside was equipped with offices of prosecutors and clerks, an interrogation room, a meeting room and a reading room. In October 2018, due to the adjustment of space configuration, the original meeting room and interrogation room on the fifth floor were allocated to the Criminal Investigation Database Center and the Data Section of the Taiwan High Prosecutors Office for their management. In September 2019, the THPO-IPB moved to the current office that is on the fifth floor of the Boyi building located just behind the Presidential Building.
Since the IPCC is located in the Panqiao District of New Taipei City, prosecutors have to conduct public prosecutions across the administrative region to New Taipei City and thus have another office room in the IPCC for them to prepare for the trial.
10th Anniversary of the THPO-IPB
On the10th anniversary of the establishment of the THPO-IPB in 2018, the Office held a special symposium on "10 Years of Review and Prospects" and certificates were awarded by the Minister of Justice, Tsai Ching-hsiang to Prosecutor Chung Feng-lin, Clerks Mr. Shiu Ching-yuan and Ms. Chang Hui-ling to appreciate their ten consecutive years of service and to acknowledge their performance.
Prospect - Completing the Prosecutorial Function for the Protection of Intellectual Property Rights
Since the 1980s, Taiwan has been having international economic and trade consultations on IPRs and has gradually established a legal framework and law enforcement capabilities for the protection of IPRs. Since the establishment of the THPO-IPB, with the efforts of many prosecutors and colleagues, its professional competence and effectiveness have gradually become clear. Looking to the future and upholding the principle of "handling the IPR infringement cases by an agency with more specialized knowledge in order to protect IPRs, promote industrial development and enhance national competitiveness", we will: (1) keep pace with the times, improve professional competence and handle cases in depth and carefully; (2) prosecute illegal conduct, balance the private rights with the public interests and safeguard legitimate rights and interests and commercial operations; (3) promote international exchanges and cooperation to effectively prosecute cross-border crimes, (4) enrich the allocation of personnel and resources and use the expertise of the prosecutorial functions on intelligent property prosecution.