SUBJECTS OF PROVING IN CRIMINAL PROCEEDINGS ON INFRINGING INTELLECTUAL PROPERTY RIGHTS

Abstract

In the present article, theoretical and practical approaches to understanding of the concept of “subjects of proving” are explored as well as their classification depending on the procedural status, a role in the process, obligation and right in proving. The subjects of proving are also contemplated via the additional criterion that is realization of all elements in the process of proving (collection, verification and assessment of evidence). Some critical remarks are made about the opinions and positions of scholars. As result of the analysis of the Criminal Procedure Code of Ukraine, the vague, fragmentarily scattered, sometimes contradictory, rights of certain subjects of proving are highlighted. The debatable issues of exercising by the subjects of proving of their procedural functions are covered. The new position of the Grand Chamber of the Supreme Court on the form and starting point of the pre-trial investigation is presented, which has been called “alternative” to the current procedure by the practitioners. The examples were provided to illustrate the current and controversial issues of the role of the subjects of proving in criminal proceedings involving IP right infringements. Such characteristics as a victim's activeness in proving is highlighted. Special attention is paid to the form of evidence collection by the victim, in particular the procedural action of voluntary handing over of documents, items, etc. Circumstances that restrict the rights of the victim after filing a civil lawsuit are specified. The specifics of the defense counsel's activity are outlined, in particular the complexity of refuting the violation of the norms of substantive law (manners of use of IPR objects). The justification is provided for why an expert is a subject of proving. In conclusion, the ways to solve problematic issues are proposed.