谢晓尧

    内容提要：著作权的行政救济，理论上有利于促使侵权外部性的内部化，形成强大的威慑激励侵害人的预防措施，减少侵权数量。行政执法的威慑力有赖于加大查处概率和提高惩处力度，在我国，版权执法信息成本和运行成本高昂，呈现出“低查处概率，低惩处强度”的非效率状态。行政处罚与民事制裁具有同质性，司法救济更具优越性，用民事制裁措施取代行政处罚是最为经济的制度安排。

    关 键 词：知识产权   行政救济   著作权   最优威慑

    Abstract: Theoretically, copyright administrative remedy is supposed to make infringers internalize the externality of their infringing acts. It is supposed to be a strong deterrence that helps to reduce the amount of copyright infringement. In order to enhance the strength of administrative enforcement, the government is supposed to increase the probability of discovering infringement incidents as well as to increase the intensity of punishment. In China, however, the informational cost and operative cost of copyright administrative enforcement is extremely high. The probability of discovery and intensity of punishment are both low at the same time. Therefore, as a matter of fact, copyright administrative enforcement is inefficient. In fact, essentially, civil punishment has the same effect as administrative punishment. And judicial remedy has its relative advantage. Thus, it is a more economic institutional arrangement to substitute civil remedy for administrative punishment.

    Key Words: intellectual property; administrative remedy; copyright; optimal deterrence