Producing or selling the products listed in Articles 141 to 148 of this section does not constitute a crime under each of those articles, but if the amount of the sales is more than 50,000 yuan, the person shall be convicted and punished in accordance with the provisions of Article 140 of this section
Legal objective:[Criminal Law Provisions] Article 141 Anyone who produces or sells counterfeit drugs shall be sentenced to fixed-term imprisonment or criminal detention for not more than three years and a fine; if it causes serious harm to human health or has other serious circumstances, it shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and a fine; if it causes death or has other particularly serious circumstances, it shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment, or the death penalty, and a fine or confiscation of property. Counterfeit medicines referred to in this Article refer to medicines and non-medicines that are counterfeits and are treated as such in accordance with the provisions of the Law of the People's Republic of China on the Administration of Medicines in the People's Republic of China*** and the People's Republic of China. Article 149 If the production or sale of the products listed in Articles 141 to 148 of this Section does not constitute a crime under each of these Articles, but the amount of the sale exceeds 50,000 yuan, the person shall be convicted and punished in accordance with the provisions of Article 140 of this Section. Aggravating circumstances: If the production or sale of the products listed in Articles 141 to 148 of this Section constitutes an offense under each of these Articles and at the same time constitutes an offense under Article 140 of this Section, the person shall be convicted and punished in accordance with the provisions of the heavier punishment. Article 150 If a unit commits an offence provided for in Articles 140 to 148 of this Section, the unit shall be sentenced to a fine and the persons directly in charge and other persons directly responsible shall be punished in accordance with the provisions of those Articles. Judicial Interpretation: Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Criteria for Filing Criminal Cases under the Jurisdiction of the Public Security Organs (No. 36 of 2008) Article 17 [Cases of Manufacturing and Distributing Counterfeit Drugs (Article 141 of the Criminal Law)] Where a person is suspected of manufacturing (or preparing) or distributing a counterfeit drug under any of the following circumstances, he or she shall be charged with the criminal prosecution of that drug: (a) if it contains poisonous or harmful substances that are beyond the prescribed standard; (b) if it does not contain any of the toxic or hazardous substances specified in its labeling; or (ii) does not contain the indicated active ingredient, which may mislead the diagnosis and treatment; (iii) the indicated indications or functions are beyond the prescribed scope, which may mislead the diagnosis and treatment; (iv) lacks the indicated active ingredient necessary for first aid; (v) other circumstances that are sufficient to seriously jeopardize human health or cause serious harm to human health. Counterfeit medicines" as stipulated in this article refers to medicines and non-medicines that are counterfeit and treated as such in accordance with the provisions of the Drug Administration Law of the People's Republic of China. The Supreme People's Procuratorate and the Ministry of Public Security "Supplementary Provisions on the Provisions on the Criteria for the Filing of Criminal Cases under the Jurisdiction of the Public Security Organs (I)" Gongtong Zi [2017] No. 12 II. Article 17 of the Criteria for the Filing of Cases for Recourse to Complaints (I) is amended to read as follows: [Cases of the Production and Sale of Counterfeit Drugs (Article 141 of the Criminal Law)] Anyone who produces or sells counterfeit medicines should be filed for the prosecution of the case. However, except for the sale of small quantities of privately processed medicines based on traditional folk formulas, or the sale of small quantities of unauthorized imported foreign or offshore medicines, which do not cause the consequences of injury to others or delay in diagnosis and treatment, and where the circumstances are significantly less serious and the harm is not great. For the purpose of producing or selling counterfeit medicines, any of the following circumstances shall be regarded as "production" as stipulated in this Article: (1) Synthesizing, refining, extracting, storing, processing and concocting raw materials of medicines; (2) Ingrediting, mixing, preparing, storing and packaging raw materials of medicines, excipients and packaging materials during the process of making them into finished products; (3) Printing packaging materials, labels and manuals. Packaging materials, labels, instructions. Any medical institution or staff member of a medical institution who knowingly provides counterfeit medicines to others for a fee, or buys or stores them for sale, shall be regarded as "selling" as stipulated in this Article. Counterfeit medicines" as stipulated in this Article refers to medicines and non-medicines that are counterfeits and are treated as such in accordance with the provisions of the Drug Administration Law of the People's Republic of China. If it is difficult to determine whether it is a fake drug, it can be determined on the basis of the opinion issued by the drug supervision and management department at or above the municipal level and other relevant materials. If necessary, a drug testing organization set up or determined by the drug supervision and management department at or above the provincial level may be commissioned to conduct the test. Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Endangering the Safety of Medicines Legal Interpretation [2014] No. 14 (Adopted by the 1626th Meeting of the Trial Committee of the Supreme People's Court on September 22, 2014, and the 18th Meeting of the Twelfth Procuratorial Committee of the Supreme People's Procuratorate on March 17, 2014) For the purpose of lawfully penalizing crimes of endangering the safety of medicines and safeguarding the lives and health of people In order to punish crimes against the safety of medicines in accordance with the law, safeguard the lives and health of the people and maintain the order of the pharmaceutical market, and in accordance with the provisions of the Criminal Law of the People's Republic of China, the following are the explanations of certain issues on the application of law in dealing with this kind of criminal cases: Article 1 The production and sale of counterfeit medicines shall be punished more severely, where appropriate, if any one of the following circumstances exists: (1) the counterfeit medicines are produced and sold to be used mainly by women in pregnancy and maternity, babies and infants, children, or critically ill patients (b) the production and sale of counterfeit drugs belonging to narcotic drugs, psychotropic drugs, toxic drugs for medical use, radiopharmaceuticals, contraceptive drugs, blood products, vaccines; (c) the production and sale of counterfeit drugs belonging to injectable drugs, first aid medicines; (d) health care institutions, health care organizations, the production and sale of counterfeit drugs by staff members; (e) in natural disasters, accidents, disasters, public **** health incidents, social security incidents and other emergencies, the production and sale of counterfeit medicines used to respond to emergencies; (6) within two years has been subjected to administrative or criminal penalties for illegal and criminal activities endangering the safety of medicines; (7) other circumstances that should be appropriate to impose heavier penalties. Article 2 The production or sale of counterfeit drugs shall be deemed to have caused serious harm to human health as stipulated in Article 141 of the Criminal Law if one of the following circumstances applies: (1) causing minor or serious injury; (2) causing mild or moderate disability; (3) causing damage to organs and tissues leading to general functional impairment or serious functional impairment; (4) causing damage to organs and tissues leading to general functional impairment or serious functional impairment; or (5) causing damage to organs and tissues leading to general functional impairment or serious functional impairment. (d) Other circumstances that cause serious harm to human health. Article 3 The production and sale of counterfeit medicines shall be deemed to be "other serious circumstances" as stipulated in Article 141 of the Criminal Law if one of the following circumstances exists: (1) causing a major public **** health emergency; (2) producing or selling more than 200,000 yuan but less than 500,000 yuan; (3) producing or selling more than 100,000 yuan but less than 200,000 yuan, and having the present conditions; (4) causing other serious harm to human health. less than two hundred thousand yuan, and has one of the circumstances stipulated in Article 1 of this Interpretation; (4) according to the time of production and sale, quantity, and type of counterfeit drugs, should be recognized as serious circumstances. Article 4 Where the production or sale of counterfeit medicines has one of the following circumstances, it shall be recognized as "other particularly serious circumstances" as stipulated in Article 141 of the Criminal Law: (1) causing serious disability; (2) causing more than three persons to suffer serious injury, moderate disability, or organ and tissue damage resulting in serious functional disorders; (3) causing more than five persons to suffer mild disability or organ and tissue damage resulting in general functional disorders; (4) according to the time, quantity and type of the counterfeit medicines, etc., it shall be recognized as a serious circumstance. disability or organ tissue damage resulting in general functional impairment; (4) causing more than ten people to suffer minor injuries; (5) causing a major or particularly major public **** health emergency; (6) producing or selling more than five hundred thousand yuan; (7) producing or selling more than two hundred thousand yuan but less than five hundred thousand yuan and having one of the circumstances stipulated in Article 1 of the present Interpretation; (8) depending on the time of production or sale, quantity, and type of counterfeit drugs, etc., shall be recognized as particularly serious circumstances. Article 5 Where the production or sale of substandard drugs has one of the circumstances stipulated in Article 2 of this Interpretation, it shall be recognized as "causing serious harm to human health" as stipulated in Article 142 of the Criminal Law. Where the production or sale of substandard drugs causes death, or where one of the circumstances set forth in Items 1 to 5 of Article 4 of this Interpretation is present, the production or sale of substandard drugs shall be deemed to have "particularly serious consequences" as stipulated in Article 142 of the Criminal Law. Where the production or sale of substandard drugs has one of the circumstances stipulated in Article 1 of this Interpretation, the punishment shall be heavier as appropriate. Article 6 With the purpose of producing or selling counterfeit or substandard drugs, anyone who commits one of the following acts shall be deemed to be "producing" as stipulated in Articles 141 and 142 of the Criminal Law: (1) synthesizing, refining, extracting, storing, processing and concocting raw materials for medicines; (2) making finished products out of raw materials for medicines, excipients and packaging materials; and (3) mixing, dosing and packaging materials for medicines in the process of producing or selling counterfeit or substandard drugs. (b) the process of raw materials, auxiliary materials, packaging materials into finished products, ingredients, mixing, preparation, storage, packaging behavior; (c) printing packaging materials, labels, instructions. The act of a medical institution or a staff member of a medical institution providing counterfeit or substandard medicines to others for a fee or purchasing or storing them for sale, knowing that they are counterfeit or substandard medicines, shall be deemed to be "selling" as stipulated in Articles 141 and 142 of the Criminal Law. Article 7 Anyone who violates the national laws and regulations on drug administration and illegally operates drugs without obtaining or using a forged or altered drug business license, under serious circumstances, shall be convicted and punished for the crime of illegal business operation in accordance with the provisions of Article 225 of the Criminal Law. If, with the purpose of providing others with medicines for production or sale, a person violates state regulations by producing or selling non-pharmaceutical raw materials or auxiliary materials that do not meet the requirements for medicines, and the circumstances are serious, he or she shall be convicted and punished for the crime of unlawful business operation in accordance with the provisions of Article 225 of the Criminal Law. Where the act of the preceding two paragraphs is committed, and the amount of illegal business operation is above 100,000 yuan, or the amount of illegal income is above 50,000 yuan, it shall be deemed to be the "aggravating circumstances" stipulated in Article 225 of the Criminal Law; where the amount of illegal business operation is above 500,000 yuan, or the amount of illegal income is above 250,000 yuan, it shall be deemed to be the "especially aggravating circumstances" stipulated in Article 225 of the Criminal Law. Article 225 of the Criminal Law stipulates that "the circumstances are particularly serious". Where an act under Paragraph 2 of this Article also constitutes a crime of producing or selling counterfeit or shoddy products, or a crime of endangering public **** safety by dangerous means, the person shall be convicted and punished in accordance with the provisions of the Penal Law that prescribe the heavier punishment. Article 8 Anyone who, knowing that another person is producing or selling counterfeit or substandard drugs, does any of the following shall be punished for the same crime: (1) providing funds, loans, account numbers, invoices, certificates, and licenses; (2) providing production or business premises, equipment, or facilities such as transportation, storage, storage, mailing, and network sales channels; (3) providing production technology or raw materials, auxiliary materials, packaging materials, labels, and instructions; (4) providing production technology, raw materials, auxiliary materials, packaging materials, labels, and instructions; and (5) providing production technology or raw materials, auxiliary materials, packaging materials, labels, and instructions. (c) Provide production technology or raw materials, auxiliary materials, packaging materials, labels, instructions; (d) provide advertising and other helping behavior. Article 9 If an advertiser, advertisement operator or advertisement publisher violates state regulations and uses advertisements to make false propaganda on medicines, and the circumstances are serious, he or she shall be convicted and punished for the crime of false advertisement in accordance with the provisions of Article 222 of the Criminal Law. Article 10 If a person who commits the crime of producing or selling counterfeit or substandard drugs also constitutes the crime of producing or selling counterfeit or substandard products, infringing on intellectual property rights, illegal business operation, illegal practice of medicine, or illegal collection and supply of blood, he shall be convicted and punished in accordance with the provisions of the provisions of the Penal Law that prescribe the heavier punishment. Article 11 The application of probation and exemption from criminal punishment shall be strictly applied to criminals who have committed the crimes provided for in this Interpretation in accordance with the conditions stipulated in the Criminal Law. Where probation is applied, a restraining order shall be pronounced at the same time, prohibiting the offender from engaging in the production, sale and related activities of medicines during the probation period. The sale of a small amount of privately processed medicines based on traditional folk recipes, or the sale of a small amount of unauthorized imported foreign or offshore medicines, which do not result in injuries to others or delay in diagnosis and treatment, and where the circumstances are significantly less serious and the harm is not great, shall not be regarded as a crime. Article 12 A person who commits the crime of producing or selling counterfeit drugs shall generally be sentenced in accordance with the law to a fine of not less than two times the amount of the production or sale. ***Where * * * the same crime is committed, the total fine imposed on each * * * the same offender shall be more than two times the amount of the production or sale. Article 13 Where a unit commits a crime provided for in this Interpretation, the unit shall be sentenced to a fine and the directly responsible supervisors and other directly responsible persons shall be punished in accordance with the standards for conviction and sentencing of crimes committed by natural persons as provided for in this Interpretation. Article 14 Where it is difficult to determine whether a drug is a "counterfeit drug" or "substandard drug" as stipulated in Articles 141 and 142 of the Criminal Law, the judicial organ may make a determination on the basis of the opinion of the drug supervision and administration department at or above the prefecture or municipal level and other relevant materials. If necessary, can be entrusted to the provincial drug supervision and management department set up or determined by the drug testing organization for testing. Article 15 The "production and sale amount" referred to in this explanation refers to the production and sale of counterfeit drugs, substandard drugs and all available illegal income. Article 16 The "minor injuries" and "serious injuries" stipulated in this Interpretation shall be appraised in accordance with the "Standards for the Appraisal of the Degree of Human Injury". The "mild disability", "moderate disability" and "severe disability" stipulated in this Interpretation shall be assessed in accordance with the relevant standards for assessing the degree of disability. Article 17 After the promulgation and implementation of this Interpretation, the Supreme People's Court, the Supreme People's Procuratorate on the handling of the production and sale of counterfeit medicines, substandard medicines criminal cases of specific application of the law on a number of issues of the Interpretation (Law Interpretation 〔2009〕 No. 9) shall be repealed at the same time; before the issuance of the judicial interpretations and normative documents and the interpretation of this interpretation is inconsistent with this Interpretation, this Interpretation shall prevail. The Supreme People's Court and the Supreme People's Procuratorate "Interpretation on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Producing and Selling Fake and Shoddy Commodities" (no longer in force) Article 3 If the drug testing organization set up or determined by the drug supervision and management department at or above the provincial level appraises that the fake drugs produced or sold have one of the following circumstances, they shall be deemed to be the ones stipulated in Article 141 of the Criminal Law, which are sufficient to seriously endanger human health. (a) Containing toxic and hazardous substances exceeding the standard; (b) Not containing the labeled active ingredients, which may lead to misleading diagnosis and treatment; (c) The labeled indications or functions exceeding the prescribed scope, which may lead to misleading diagnosis and treatment; (d) Lacking the labeled active ingredients necessary for first aid. Counterfeit drugs produced or sold shall be deemed to have caused "serious harm to human health" if they are used and cause minor or serious injuries or other serious consequences. Where the production or sale of counterfeit medicines, after being used, causes serious disability, serious injury to three persons or more, light injury to ten persons or more, or other particularly serious consequences, it shall be recognized as "causing particularly serious harm to human health". Article 9 Anyone who knows or should know that another person has committed the crime of producing or selling counterfeit or shoddy goods, and provides him with loans, funds, account numbers, invoices, certificates or licenses, or facilitates the production or operation of the goods, or the transportation, warehousing, storage or mailing of the goods, or provides the technology of making counterfeit goods, shall be punished as a criminal for the crime of producing or selling counterfeit or shoddy goods. Article 10 If a person commits the crime of producing or selling counterfeit or shoddy goods and at the same time constitutes other crimes such as infringement of intellectual property rights and illegal business operation, he shall be convicted and punished in accordance with the provisions on heavier punishment. Article 11 If a person who commits a crime provided for in Articles 140 to 148 of the Criminal Law and resists investigation and handling by means of violence or threat constitutes another crime, he shall be punished in accordance with the provisions on the combination of several crimes. Article 12 A staff member of a State organ who participates in the crime of producing or selling counterfeit or shoddy goods shall be given a heavier punishment. Where this crime also constitutes Article 140 of the Criminal Law, "the crime of producing or selling counterfeit or shoddy products", he or she shall be convicted and punished in accordance with the provisions on heavier penalties. (Article 149(2) of the Criminal Law)