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在《TRIPS协议》刑事部分对缔约方的效力问题上,各缔约方采用了不同的做法。美国和欧洲共同体均不承认包括《TRIPS协议》刑事部分在内的WTO诸协议规范对其法域内直接适用的效力,而是通过颁布国内法的形式,将其转化成国内法来执行。中国台湾地区“宪法”等法律法规没有明确规定,但司法实务普遍肯定《TRIPS协议》有直接适用效力而在实践中予以自动适用,其效力也高于一般的国内法。我国采用间接适用方式符合《TRIPS协议》的要求和我国的国家利益,具有合理性。
Parties have adopted different approaches to the effectiveness of contracting parties under the criminal component of the TRIPS Agreement. Both the United States and the European Community do not recognize the validity of normative WTO rules, including the criminal part of the TRIPS Agreement, as they apply directly to their jurisdictions. Instead, they are implemented by enacting domestic laws and converting them into domestic laws. China Taiwan area “Constitution ” and other laws and regulations are not clearly defined, but the judicial practice generally affirmed “TRIPS Agreement” has the direct effect and in practice to be automatically applied, its effectiveness is also higher than the general domestic law. It is reasonable for China to adopt the indirect application mode in line with the requirements of TRIPS Agreement and China’s national interest.