1. Overview of the crime of producing and selling counterfeit and inferior products
(1) Harmful consequences of the crime of producing and selling counterfeit and inferior products
1. A crime of one amount: 140 production and sales The crime of counterfeit and substandard products requires a sales amount of more than 50,000 yuan.
2. Two abstract dangerous crimes: 141 crimes of producing and selling counterfeit drugs, and 144 crimes of producing and selling toxic and harmful foods.
3. Two specific dangerous crimes: Article 143 of the crime of producing and selling food that does not meet safety standards, and Article 145 of the crime of producing and selling medical equipment that does not meet standards.
4. Four infringement crimes: 142 crimes of producing and selling inferior drugs, 146 crimes of producing and selling products that do not meet safety standards, 147 crimes of producing and selling fake pesticides, veterinary drugs, fertilizers and seeds, 148 crimes of producing and selling illegal products Cosmetics crimes that meet hygiene standards.
(2) The relationship between the nine charges
1. The eight charges from 141 to 148 are special legal provisions. If they meet the crimes specified in Article 140 at the same time, one of them will be convicted and punished.
2. Counterfeit and substandard drugs, toxic and harmful foods, and foods that do not meet safety standards are complementary laws and regulations. If there is an error in factual understanding and it is an abstract error in factual understanding, the crime shall be determined within the scope of consistent legal evaluation.
3. Units can commit this crime: double penalty system
4. There are two crimes under the death penalty: the crime of producing and selling counterfeit drugs, and the crime of producing and selling toxic and harmful food.
2. Crime of Producing and Selling Counterfeit and Substandard Products
(1) Sales Amount
It is all the illegal income and due income of producers and sellers after selling counterfeit and inferior products. income.
1. The sales amount is more than 50,000 yuan.
2. If the counterfeit and inferior products have not yet been sold and the value of the goods exceeds 150,000 yuan, they will be convicted and punished for the crime of attempted production and sale of counterfeit and inferior products.
3. The sales amount is less than 50,000 yuan. (Sales amount x 3) Value of goods = 150,000 yuan, then he will be convicted and punished for the crime of attempted production and sale of counterfeit and inferior products.
(2) The main subjects of the crime are producers and sellers
1. Whether the producer or seller has obtained the production license or business license for the relevant product does not affect the establishment of this crime. .
2. Producers and sellers of the same counterfeit and inferior products who conspire in advance shall be guilty of committing a crime.
3. Producers and sellers do not necessarily exist at the same time, and there may be only one party.
4. If the perpetrator informs the end consumer of the truth about the counterfeit and inferior products, and the consumer is willing to accept it, the perpetrator neither commits the crime of fraud nor the crime of selling counterfeit and inferior products. If the perpetrator informs the wholesaler of the truth about the counterfeit and inferior products and the wholesaler is willing to accept it, the perpetrator is still guilty of selling counterfeit and inferior products.
(3) Hazardous behaviors
Adulteration, adulteration, passing off fake products as genuine products, passing off substandard products as good products, and passing off substandard products as qualified products. Occurs in the field of market operations.
***Commitment problem: Knowing that others are producing and selling counterfeit and inferior products, providing them with loans, funds, account numbers, invoices, certificates, licenses, or providing production and business premises or transportation, warehousing, and custody Those who provide conveniences such as mailing and mailing, or provide counterfeit production technology shall be punished as criminals of this crime.
(4) Form of crime: intentional
"The purpose of obtaining illegal profits" is not a constituent element of this crime. The issue of the number of crimes: Those who produce and sell counterfeit and inferior products that simultaneously constitute crimes such as infringement of intellectual property rights, illegal business operations, (contract) fraud, etc., shall be convicted and punished in accordance with the provisions of heavier penalties. Anyone who commits this crime and resists investigation and punishment with violence or threats, which constitutes the crime of obstructing official business, shall be punished for several crimes.
3. The crime of producing and selling counterfeit drugs
It is an abstract dangerous crime and a behavioral crime.
(1) Scope of counterfeit drugs
Counterfeit drugs are not drugs and refer to drugs and non-drugs that cannot be used on the human body.
The ingredients of the drug are inconsistent with the ingredients specified in the national drug standards; the drugs are passed off as drugs with non-drugs or other drugs are passed off as such drugs; the use is prohibited by the drug regulatory department of the State Council; and must be approved in accordance with the "Drug Administration Law" Produced or imported without approval, or sold without inspection when required to undergo inspection in accordance with the Drug Administration Law; spoiled; contaminated; used in accordance with the Drug Administration Law, which requires an approval number but fails to obtain an approval number Produced by raw materials: the indicated indications or functions are beyond the specified scope.
Producing and selling fake pesticides and fake veterinary drugs does not constitute this crime. If items such as veterinary drugs are passed off as drugs for human use and sold as human drugs, they are also counterfeit drugs. Note that although foreign drugs have medicinal effects but have not obtained an approval number in our country, they are also considered to be producing and selling counterfeit drugs when they are produced and sold for commercial purposes. If it is difficult to determine "fake drugs" or "inferior drugs", the judicial authorities may make the determination based on the identification opinions issued by the drug regulatory authorities at or above the prefectural or municipal level and other relevant materials. When necessary, a drug inspection agency set up or determined by the drug regulatory department at or above the provincial level may be entrusted to conduct inspection.
(2) Production and sales activities
1. Production activities: all activities of manufacturing, processing, preparing, collecting, collecting certain items to serve as qualified or specific drugs: synthesis, refining , the act of extracting, storing, and processing pharmaceutical raw materials; the act of batching, mixing, preparing, storing, and packaging pharmaceutical raw materials, excipients, and packaging materials into finished products; the act of printing packaging materials, labels, and instructions.
2. Sales behavior: including medical institutions and medical institution staff providing paid drugs to others for use, knowing that they are counterfeit or substandard drugs, or purchasing and storing drugs for sale.
3. Selling a small amount of drugs that are privately processed according to traditional folk formulas, or selling a small amount of foreign or overseas drugs imported without approval, without causing harm to others or delaying diagnosis and treatment, and the circumstances are obvious and minor, and the harm is not great. Not considered a crime.
4. Unlicensed operation of drugs, production, and sales of raw materials and excipients that do not meet pharmaceutical standards constitutes the crime of illegal business operations
Violating national drug management laws and regulations, failing to obtain or using counterfeit or altered drugs Those who illegally operate drugs with a fabricated drug business license and the circumstances are serious; those who violate national regulations for the purpose of providing others with the production and sale of drugs, produce and sell non-drug raw materials and excipients that do not meet medicinal requirements, the circumstances are serious.
(3) Upgraded statutory penalties
1. Basic crime: obstructing drug management order, statutory crime
2. Upgraded penalty: infringing on the body and life of citizens, Natural crimes are considered serious or particularly serious circumstances.
According to judicial interpretation, it includes situations where the amount is huge or particularly huge. However, the basic crime of producing and selling counterfeit drugs is to obstruct the order of drug management, which is a statutory crime; and the condition for upgrading the statutory penalty is to infringe on the body and life of citizens, which is a natural crime. Therefore, only facts or results that endanger the body and life of citizens can be recognized as "serious circumstances" or "particularly serious circumstances."
***Make a problem. Anyone who knows or should know (presumptively known) that others are producing or selling counterfeit or substandard drugs and falls under any of the following circumstances shall be punished as a criminal for the crime of producing or selling counterfeit drugs: Provide funds, loans, account numbers, invoices, certificates , license certificate; providing production and business premises, equipment or convenient conditions for transportation, warehousing, safekeeping, mailing, etc.; providing production technology, or providing raw materials, auxiliary materials, and packaging materials; providing advertising and other publicity.
(4) The issue of the number of crimes
The crime of producing and selling counterfeit and inferior drugs also constitutes crimes such as producing and selling counterfeit and inferior products, infringing on intellectual property rights, illegal business operations, illegal medical practice, illegal blood collection and supply, etc. Choose a severe punishment. Anyone who illegally sells drugs without obtaining or using a forged or altered drug business license shall be guilty of illegal business operations. In order to provide others with the production and sale of medicines, if the circumstances are serious and the non-drug raw materials and excipients that do not meet the medical requirements are produced and sold, the crime of illegal business shall be established.
(5) Punishment
During the period of natural disasters, accidents, public health incidents, social security incidents and other emergencies, production and sales are used to respond to emergencies. Those who commit counterfeit or inferior drugs will be severely punished. If probation is applicable, a prohibition order shall be issued at the same time to prohibit the production and sale of drugs during the probation period.
IV. Crime of Producing and Selling Substandard Drugs
(1) Scope of Substandard Drugs
Substandard drugs are substandard drugs whose ingredients are substandard: Marking the expiration date or changing the expiry date; not marking or changing the production batch number; exceeding the expiration date; packaging materials and containers that are in direct contact with drugs without approval; adding colorants, preservatives, spices, flavorings and excipients without authorization; Others that do not meet drug standards.
(2) Producing and selling inferior drugs is a crime of infringement
1. A crime can only be established if it causes serious harm to human health (minor injury or more). The hospital sells counterfeit drugs and inferior drugs, which constitutes the crime of selling counterfeit drugs and selling inferior drugs. If a hospital uses counterfeit or substandard drugs on patients, and the patients have to pay for the medicine, it is also selling counterfeit or substandard drugs.
2. Enterprises with drug business qualifications purchase drugs from private individuals through illegal channels and then sell them: If they are determined to be counterfeit drugs or inferior drugs, they will be charged with the crime of selling counterfeit drugs or selling inferior drugs. To be convicted of selling substandard drugs, the requirement of actual harm must be met. If the drug cannot be determined to be fake or substandard, it will be subject to administrative penalties and should not be charged with illegal business operations because it has drug business qualifications.
3. If there is a misunderstanding of fake or inferior drugs, they will be treated as inferior drugs.
5. The crime of producing and selling toxic and harmful food
1. The crime of producing and selling toxic and harmful food is an abstract dangerous crime, and the crime of causing actual harm is aggravated by the consequences.
The release of dangerous substances is a specific dangerous crime. The two are not contradictory. The two may conspire to be punished with one severe punishment. Mixing toxic and harmful raw materials into non-food products (such as medicines) does not constitute this crime, but may lead to crimes such as the crime of producing and selling fake and inferior products, and the crime of releasing dangerous substances.
2. The scope of “food” should be interpreted in a standardized way. (1) Food sold in stores and food made by yourself; (2) Processed food and unprocessed food (salvaged aquatic products); (3) Live animals (such as live pigs); (4) Not suitable Items for human consumption (such as industrial alcohol).
Toxic and harmful keywords: (Incorporation, use) of toxic and harmful non-food raw materials or substances, use of banned pesticides, veterinary drugs and other banned substances or other toxic and harmful substances, illegal addition of national banned drugs and other toxic substances , harmful substances, using "clenbuterol" to feed, slaughter, and sell livestock and their products, and using "gutter oil" to process and sell edible oil. Note that it is impossible to find out whether "edible oil" is produced and processed using "gutter oil", but sells the "edible oil" knowing that the source of the "edible oil" is suspicious: (1) If after identification, toxic and harmful ingredients are detected, the sale of toxic , the crime of harmful food; (2) if it is food that does not meet safety standards, the crime of selling food that does not meet safety standards is established; (3) if it is a crime of passing off a fake product as genuine, a substandard product as a good one, a substandard product as a qualified product, or a counterfeit registration If a trademark constitutes a crime, the crime of selling counterfeit and inferior products or the crime of counterfeiting a registered trademark, or the crime of selling goods with counterfeit registered trademarks will be established.
3. If the crime does not meet the requirements of this crime, it may be the crime of producing and selling food that does not meet safety standards. This crime is a special legal provision for the crime of producing and selling food that does not meet safety standards, and the legal provisions are competing and cooperative.
If the perpetrator makes a misunderstanding between toxic or harmful food and food that does not meet safety standards, it is an abstract factual misunderstanding, and within the scope of overlap, it is determined to be the production and sale of food that does not meet safety standards. crime.
4. Producing and selling food additives that do not meet food safety standards, or packaging materials, containers, detergents, and disinfectants used for food, or tools and equipment used in food production and operation, may Convicted of producing and selling counterfeit and inferior products. If a seller intentionally sells poisonous and harmful food to a specific person in order to kill him or her, he shall be guilty of intentional homicide.
VI. Crimes of producing and selling food that does not meet safety standards
1. Specific dangerous crimes are required to cause serious food poisoning accidents or other serious food-borne diseases. After identification by an agency determined by the health administrative department at or above the provincial level, the food contains excessive harmful bacteria or other contaminants that may cause severe food poisoning or other serious food-borne diseases.
2. Keywords for the identification of "food that does not meet safety standards" in the crime of producing and selling food that does not meet safety standards: livestock meat products that have died of illness, unknown cause of death, or failed inspection and quarantine; exceeding the limit , excessive abuse of food additives, pesticides, veterinary drugs, etc.; foods whose production is expressly prohibited; nutrients required for growth and development in infant food seriously fail to meet food safety standards.
3. Producing and selling food that does not meet food safety standards and there is no evidence to prove that it is sufficient to cause serious food poisoning accidents or other serious food-borne diseases does not constitute this crime, but it does constitute the crime of producing and selling fake and inferior products. Those who commit other crimes shall be convicted and punished in accordance with other crimes.
4. Anyone sentenced to fixed-term imprisonment or above for a food safety crime shall not be engaged in food production and operation management for life, nor shall he serve as a food safety manager in a food production and operation enterprise.
7. The crime of producing and selling products that do not meet safety standards
It is a crime of infringement and requires serious consequences to be considered a crime.