Civil Follow Criminal or Criminal Follow Civil Procedure as Models to Deal with IP Infringement: Asian vis-à-vis Western Approaches

This joint article tries to identify yet another factor that shapes IP laws and regimes in some major Asian economies. It finds that it is the actual use or overuse of criminal punishment for protecting IP rights that distinguishes Asian IP laws and regimes from Western ones typified by Germany. After introducing the two major research questions, this article first surveys the Asian IP landscape, in the order of when IP laws were introduced into the civil law jurisdictions (Japan, Taiwan, Korea, and China), and into the common law jurisdictions (India, Malaysia, and Hong Kong) respectively. This article then examines German experiences in having the statutory principle of criminal prosecution following civil or administrative law procedure, the prosecution of IP criminal cases, and its judicial practice. This is followed by comparative study between Asian economies and Germany and critical policy analysis of IP crimes. It ends with some suggestions for Asian economies, IP leading economies, and the WTO community.