Constitutive elements of tort crime

In practice, tort is an illegal infringement of the legitimate rights and interests of others, including the mental and physical or material infringement of the victim, and the actor should bear the corresponding damages according to the fault liability. What are the constitutive requirements of tort?

Legal objectivity:

The object of this crime is the national copyright management system, the copyright of others and the rights and interests related to copyright. The so-called copyright, also known as copyright, refers to the exclusive rights enjoyed by the author or other copyright owners for the literary, artistic and scientific works that have been created. Copyright is an important part of intellectual property rights. In order to protect copyright and copyright-related rights and interests from infringement and promote the development of socialist culture and science in China, the National People's Congress Standing Committee (NPCSC) passed the Copyright Law of People's Republic of China (PRC) on 1990, which basically established the legal protection system of copyright in China. However, the copyright law does not provide criminal sanctions for acts that infringe copyright and copyright-related rights and interests, so it is impossible to effectively punish some acts that seriously infringe copyright and copyright-related rights and interests by investigating criminal responsibility, which makes the legal protection of copyright flawed. In view of this, on July 5th, 1994, the National People's Congress Standing Committee (NPCSC) adopted the Decision on Punishing Crimes of Copyright Infringement. This decision stipulates the crime of infringing copyright and copyright-related rights and interests for the first time in China's criminal legislation, which makes the legal protection of copyright in China reach a new level and has important practical significance. This article has been amended according to this decision. According to the provisions of the Copyright Law, copyright includes personal rights and property rights in the following five aspects: the right to publish, the right to sign, the right to modify, the right to protect the integrity of works, the right to use and the right to receive remuneration; The rights and interests related to copyright mainly refer to the neighboring rights of works owned by publishers, performers and producers of audio and video recordings. The crime of copyright infringement is a direct violation of the above copyright and the rights and interests related to copyright. At the same time, in order to strengthen the management of copyright, the Copyright Law clearly stipulates the scope of works, the content of copyright, ownership and protection period, acts of infringing copyright and copyright-related rights and interests, and legal responsibilities. Its purpose is to promote the development and prosperity of China's scientific and cultural undertakings by protecting copyright and copyright-related rights and interests, encouraging people to create and popularize intellectual achievements. If copyright and copyright-related rights and interests are infringed, its behavior not only has the nature of civil infringement, but also infringes on the interests of the state and society in serious cases. Therefore, the object of this crime should be the unity of the national copyright management system and the copyright of others and the rights and interests related to copyright. The object of this crime is other people's works, books, audio-visual products and works of art with forged signatures. The so-called works refer to the intellectual achievements in literature, art and science that people use to express their thoughts and feelings. According to Article 3 of the Copyright Law, works include the following works: (1) written works; (2) Oral works; (3) Music, drama, folk art and dance works; (4) Artistic and photographic works; (5) Movies, television and video works; (six) engineering design and product design drawings and their descriptions; (seven) maps, schematic diagrams and other graphic works; (8) Computer software; (9) Other works as prescribed by laws and administrative regulations. Books refer to books and periodicals whose works are edited and processed by publishing houses, layout design and cover design, and then typeset, printed and bound for distribution. Audio-visual products refer to any original recording with sound or any original recording with or without continuous related images except films, television and video works. An artistic work signed by others refers to an artistic work made by oneself or signed by others. If the infringed object does not fall within the above scope, it does not constitute this crime. Objectively, this crime is manifested as a serious act of infringing copyright and copyright-related rights and interests. Articles 15 and 16 of China's Copyright Law stipulate that 15 infringes on copyright and copyright-related rights and interests, but according to this article, only the following four kinds of infringements can constitute this crime: 1. Reproduction and distribution of written works, music, movies, television and video works without the permission of the copyright owner. Without the permission of the copyright owner means without the consent of the copyright owner. The copyright owner generally refers to the author, and can also be other citizens, legal persons or unincorporated units that enjoy copyright according to law. According to the Copyright Law, a work created by or on behalf of a legal person or entity without legal personality and undertaken by a legal person or entity without legal personality is regarded as the author and enjoys copyright; The copyright of a deductive work shall be enjoyed by the performer, and the copyright of a cooperative work shall be shared by the co-authors. If a work can be used alone or used alone, the author can enjoy the copyright alone. Directors, screenwriters, lyricists, composers, photographers and other authors of films, television and video works shall enjoy the right of authorship, and other copyrights shall be enjoyed by producers. If scripts and music can be used independently, their authors have the right to exercise their copyright independently. Anyone who uses his work without the consent of the above-mentioned personnel is an act without the permission of the copyright owner. According to the implementing regulations of the Copyright Law, copying refers to the act of making one or more copies of a work by printing, copying, copying, rubbing, audio recording, video recording and copying. Distribution refers to providing a certain number of copies of works to the public by selling or renting to meet the reasonable needs of the public. According to the provisions of this article, copying and distribution as a whole are closely related and should be possessed at the same time to constitute this crime. If only one of them is possessed, it is not in conformity with this crime. Of course, if different actors collude in advance to copy and distribute separately, it is a joint crime and can still constitute this crime. 2. The act of publishing books that others enjoy exclusive publishing rights. Publishing refers to the act of editing and processing a work and then copying it to the public. Publishing is actually a special reproduction distribution. Publishers who publish books generally need the authorization of the copyright owner to obtain the exclusive publishing rights of their works. Exclusive publishing right refers to the exclusive right of the publisher to produce and distribute the works delivered by the copyright owner in the form of originals or amendments at the time and place agreed in the contract. It is an important right related to copyright and exclusive, and cannot be exercised by others, otherwise it will constitute infringement. 3. Reproduction and distribution of audio and video products made by the producer without the permission of the producer. This is an act of infringing the neighboring rights of the producer's works. A producer of audio and video recordings is one who makes audio and video recordings. Because they not only invested a certain amount of manpower, material resources and financial resources, but also paid considerable original labor, they also have the right to license others to copy and distribute their audio-visual products according to law. If others copy and distribute their audio-visual products without permission, it is of course an infringement of their rights. 4. The act of making and selling artworks by forging others' signatures is an act of illegally profiting in the name of others. It not only infringes on others' personal rights (mainly the right of signature), but also inevitably affects the sales of others' artistic works, thus indirectly infringing on others' property rights. At the same time, this kind of behavior also deceives the public, which is quite harmful to the cultural market order in China and should be punished. It is worth discussing whether the juxtaposition of "manufacturing" and "sales" in this article means that one of them can constitute this crime? We believe that combining the first three acts that constitute this crime should be understood as "making and selling" or "making for selling" to constitute this crime, and it is reasonable to make it as one of the objective acts of this crime as "copying and publishing". Subjectively, only manufacturing and selling or manufacturing for sale can explain that the actor has a profit-making purpose. According to the provisions of this article, the above four situations, where the amount of illegal income is relatively large or there are other serious circumstances, must also constitute this crime. According to Article 2 of the Supreme People's Court's Interpretation on the Application of Several Issues (Decision of NPC Standing Committee on Punishing Crimes of Copyright Infringement), if the amount of personal illegal income is more than 20,000 yuan, and the amount of unit illegal income is more than10,000 yuan, it belongs to "several illegal incomes are relatively large"; In any of the following circumstances, it belongs to "other serious circumstances": being investigated for administrative responsibility or civil responsibility for copyright infringement for more than two times, infringing copyright; The amount of illegal business operation by individuals is more than100000 yuan, and the amount of illegal business operation by units is more than100000 yuan; Causing other serious consequences or other serious circumstances. Subject Elements The subject of this crime is a general subject, including both natural persons who have reached the age of criminal responsibility and have criminal responsibility ability, as well as units engaged in publishing activities with or without state approval. According to the provisions of Article 220 of this section, if a unit commits this crime, the system of two punishments shall be implemented, that is, the unit shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be investigated for criminal responsibility in accordance with the provisions of this article. Subjective elements This crime is intentional subjectively and has the purpose of making profits. If the actor copies and distributes other people's works out of negligence, such as mistakenly thinking that the protection period has expired, or intentionally, but for non-profit purposes such as pursuing reputation, it cannot constitute this crime. The constitutive elements of the crime of copyright infringement include object elements, objective elements, subject elements and subjective elements, all of which are indispensable.