Yang Tian meaning: Plead of crime of finance of office of wide strong attorney and research center researcher
"Is copyright of ensign national emblem also you? "Is copyright of ensign national emblem also you??
On April 11, 2019, official small gain call-overs in the center of the Youth League China of vision of ask a question, doubt vision China claims its enjoy copyright to national emblem, ensign, with the price clearly marked mark a price the action that provides service of authorization paying fee.
At this point problem, the friend undertakes advisory to the author, this one behavior of visual China is belonged to after all civil and con, still constitute contract crime of fraud?
The author thinks, the act that the copyright of design of national emblem of visual China collection, ensign uses fee should be maintained for civil and con, but do not constitute penal contract crime of fraud. Reason is as follows:
1, the copyright that visual China owns national emblem, ensign impossibly apparently. The copyright that says here, namely copyright. Copyright is the work such as technology of science of the literature that shows copyright person is based on his to create, art and science, society, project enjoys each person right and property right. According to our country " ensign law " (edited 2009) regulation: "The ensign that according to the the Chinese People's Political Consultative Conference presidium of the first plenary session announces makes ensign of People's Republic of China law specification is made. " basis " national emblem law " (edited 2009) regulation: "National emblem of People's Republic of China according to what people government committee passes in the center of 1950 " design of national emblem of People's Republic of China " announce with general office of committee of government of the people central " design of national emblem of People's Republic of China makes a specification " make. " visible, the design of ensign, national emblem is legal, not be the work that the person creates some copyright, not be copyright of vest in some more the person's copyright.
What need points out is, if be some copyright person,created relevant photography or art work to create theme with national emblem, ensign, be like with specific angle, specific photography parameter, the photography work that is subject matter creation with the Five-Star Red Flag of the national emblem of suspension of people congress hall or Tiananmen Square, can hold copyright. But picture of the ensign that visual China call-overs in the center of the Youth League, national emblem, not be the photography work that by citizen, legal person other perhaps organization creates or other art work apparently, is the standard design of national emblem, ensign. Visual China cannot hold copyright to these two pieces of graphs apparently.
2, visual China puts the pattern of national emblem, ensign park website, with the price clearly marked mark a price the act that collection copyright uses fee is belonged to should invite about, and the person that use is in after seeing this wants to invite about and pay use fee to visual China, contract concern was formed between the person that use and visual China. But the problem depends on, visual China does not have copyright to the design of national emblem, ensign, is the behavior that its are based on the design copyright that does not enjoy to use fee to collection of the person that use maintained after all civil and con be still contract bilk?
3, civil and fraudulent action is to point to establishing, in the change, process that ends civil rights and civil obligation, tell each other intentionally false circumstance, conceal true condition intentionally perhaps, prevail on the other side makes the denotive conduct that gives a mistake. And contract bilk is to point to it is a purpose with detinue, in sign, in the process that fulfils a contract, use deceit method, property of diddle the opposing party, the action with larger number. To civil and con with contract bilk divisional, the key depends on at 2 o'clock: Whether use criminal law provision " beguiling method " , whether to have " detinue purpose " .
" criminal law " of the 224th regulation " beguiling method " include: "(one) perhaps risk what sign a contract with other name with dummy unit; (2) in order to forge, the property right with falsification, cancellation other perhaps and false bill proves to assure; (3) did not fulfill ability actually, with be being fulfilled first small the method that the contract perhaps fulfils a contract partly, coax the opposing party continues to sign and fulfil a contract; (4) receive a the opposing party to perhaps assure to paid goods, payment for goods, imprest of the abscond after belongings; (5) with property of the opposing party of other method diddle. " apparent, the behavior of visual China does not belong to afore-mentioned criminal law to set " beguiling method " .
The behavior of visual China is maintained unfavorable also and simply to have " detinue purpose " . Although the surface comes up,look, the result is the person that the picture is used be based on a contract to concern its belongings is made over and under the control of park vision China, but we are transverse the accredit that compares pattern of national emblem, ensign is used count with visual China with 100 million plan the accredit of the picture that has lawful, true copyright is used, both the commercial pattern between, gain profit means does not have inevitable difference. This also is meant, visual China is to be based on those who offer picture copyright accredit to use a service to get pair of price, be not purely pursuit to the method is gotten illegally and own the lawful property of the person that use in order to cheat. Accordingly, visual China does not accord with contract crime of fraud make important document, what should belong to civil code category is civil and con.
4, the con sex expression of visual China behavior is in, its do not have the copyright of national emblem, ensign, and advocate on the design of national emblem, ensign its enjoy copyright, provide the service that accredit paying fee uses. Because the person that the behavior of visual China makes use is immersed in what visual China owns copyright of design of national emblem, ensign " wrong understanding " and formed a contract to concern with visual China, according to the relevant provision of contract law, this contract is belonged to but the contract of cancel, the person that the picture is used has authority to ask people court arbitral perhaps orgnaization is changed or cancel.
