The crime of producing and selling fake and shoddy products refers to the behavior of a producer or seller who adulterates or adulterates a product, substitutes a fake for the real one, substitutes a substandard product for a good one or substitutes a substandard product for a qualified product, with a sales amount of more than 50,000 yuan. (Refer to the Criminal Law of the People's Republic of China*** and the State of China, Title II. Chapter Three. Section I (Articles 140~150)
Concept
The crime of producing and selling shoddy products refers to the behavior of producers and sellers who intentionally adulterate the products, adulterate the products, substitute the good for the bad, substitute the good for the fake or substitute unqualified products for qualified products, and the amount of the sales is more than 50,000 yuan.
For the production and sale of shoddy goods, China has been in accordance with the original criminal law speculation to be recognized and punished, but the crime of the pocket features have obviously lagged behind the rapid development of economic life and complexity of the change. l993 February 22 adopted the "People's Republic of China * * * and the State Product Quality Law," which stipulates in article 38: ".... Producers and sellers of products adulterated, adulterated, fake for real, substandard, or substandard products for qualified products, shall be ordered to stop production, sales, confiscate the illegal income, and impose a fine of more than double the illegal income of more than five times the amount of the fine, you can revoke the business license; constitutes a crime, shall be prosecuted according to law for criminal responsibility." This provision is too principled, and in practice, the production and sale of counterfeit and shoddy goods are still recognized as speculative crimes. The Decision on Punishing the Crime of Producing and Selling Fake and Shoddy Goods stipulates this as a separate crime, which is of great significance for vigorously combating the production and sale of fake and shoddy products, which are now widely practiced in society. This law in this article expressly defined this crime, the intention is also in this regard.
Criminal Composition
(1) Object Elements
The object of this crime is a complex object, including the national product quality, industrial and commercial administration of the management system and the legitimate rights and interests of consumers.
The object of this crime is shoddy products. The so-called shoddy products, in a broad sense, according to the provisions of article 2 of the product quality law, the "product" here, should refer to the processing, production, for sale of products, but does not include construction. That is, in addition to the construction of all shoddy products, whether industrial supplies or agricultural supplies, whether household goods or means of production, whether there is a danger to the person, property safety products or no danger to the person, property safety products, may be included in the crime of shoddy products. According to the relevant provisions of the Product Quality Law, including:
(1) in the product adulteration, adulteration, fake for real, substandard, to unqualified products as qualified products, resulting in the product does not meet the product quality standards, such as national standards, industry standards, enterprise standards; does not have the product should have the use of performance, but the existence of the product performance of the flaws in the use of the exception to make a description of the product; does not comply with the product or its packaging indicates the use of product quality, quality and safety. Or its packaging indicates the use of product standards and product descriptions, physical samples and other ways to indicate the quality of the situation, etc.,
(2) counterfeit origin or counterfeit or fraudulent use of another person's factory name, address;
(3) counterfeit or fraudulent use of certification marks, marks of excellence and other quality marks,
(4) belonging to the state expressly provided for the elimination of the product,
(5) Falsification of test data or test conclusions;
(6) no certificate of inspection or no relevant units allowed to sell the certificate;
(7) the product or its packaging does not meet the requirements, such as no proof of product quality inspection; no Chinese-language labeling of the product name, manufacturer's name and address; not according to the characteristics of the product and the use of the requirements of the product, the product specification, level, the main ingredients contained in the Name and content; limited use of the product is not marked with the date of production and safe use date or expiration date; improper use of the product itself is likely to cause damage to the product itself or may endanger the safety of persons and property of the product, there is no warning sign or Chinese warning instructions, but the bare instruments and other products according to the characteristics of the product is difficult to attach a mark of the bare products, can not be attached to the product marking; highly toxic, hazardous, fragile, Storage and transportation can not be inverted as well as other special requirements of the product, there is no warning or Chinese warning instructions or marked storage and transportation precautions, etc.;
(8) failure, deterioration, etc.. According to the provisions of this article, constitute the object of this crime of shoddy products, not belong to the above broad definition of shoddy products. Become the object of this crime can only be: does not meet the protection of human health, personal and property safety of national standards, industry standards, enterprise standards and other products; adulteration, adulteration, fake for real, substandard products; unqualified products; failure, deterioration of the product; and so on. If it is not the production and sale of the above essentially shoddy goods, although the production and sale of shoddy products, although the illegal behavior, does not constitute this crime.
(B) the objective elements
This crime in the objective aspect of the violation of national product quality supervision and management laws and regulations, intentionally in the product adulteration, adulteration, fake for the real, substandard or unqualified products passed off as qualified products, the sales of more than 50,000 yuan in the act.
The behavior is manifested in four cases:
l, adulteration, adulteration, i.e., in the production and sale of products mixed with the original product and different types of debris, or mixed with other fake products that do not meet the quality of the original product. Such as in sesame seeds mixed with sand, in the phosphate fertilizer mixed with people of the same color as the soil.
2, fake for real, that is, the producers, sellers of counterfeit products as real products, mainly for the production and sale of the product name does not match the actual name, or the name of the raw material, the product contains ingredients and the actual name of the product, the ingredients do not match. Such as ginseng as ginseng, pigskin shoes as cowhide shoes.
3, the second best, that is, the quality of the product to the quality of the product. The main performance of the inferior products as genuine, will be the low level of products as high level of products, will be the old products as new products, will be out of the product as not out of the product, will not get some kind of honorary title of the product as a certain kind of honorary title of the product, and so on.
4, to unqualified products as qualified products, the main performance will not meet national standards, industry standards for products to meet national standards, industry standards for products, will be more than the use of the term of the product as not more than the use of the term of the product. As long as the implementation of one of the above acts may constitute the production, sale of shoddy products, while the implementation of a variety of acts, but also only a crime.
The production and sale of shoddy products constitutes a crime, the sales amount of 50,000 yuan or more is required. Whether it is an individual producer or seller, or a unit producer or seller, this amount must be reached, otherwise the crime will not be punished. The sales amount reflects the scale of the production and sale of shoddy products, the duration of the behavior, the scope of harm and the subjective viciousness of the perpetrator. That is, the sales amount and the severity of the above circumstances are directly proportional to the sales amount is large, reflecting the perpetrator of the production and sale of counterfeit and shoddy products on a large scale, the duration of the act is long, the scope of the harm is wide, the perpetrator's subjective malignancy is serious; and vice versa. Moreover, the operability of such provisions, easy for the judicial organs to accurately identify and punish the crime.
In addition, in accordance with the provisions of Article L49 of this Law, the production and sale of counterfeit medicines, substandard medicines, foodstuffs that do not conform to hygiene standards, foodstuffs adulterated with poisonous or harmful non-food raw materials, substandard medical devices, medical sanitary materials, substandard electrical appliances, pressure vessels, flammable and explosive products, counterfeit pesticides, counterfeit veterinary medicines, counterfeit chemical fertilizers, counterfeit seeds and cosmetics that do not conform to hygiene standards do not constitute the remaining crimes stipulated in this section, provided that they do not constitute a crime. If the act does not constitute any of the remaining offenses under this Section, but the amount of the sale is fifty thousand dollars or more, the act shall be punished as this offense. At the same time, if the act constitutes both this crime and the rest of the crimes in this section, it shall be convicted and punished in accordance with the provisions of the heavier penalty.
(C) the main elements
The main body of this crime is the producer, seller. In practice, all natural persons who have reached the age of criminal responsibility and have the capacity for criminal responsibility can constitute the crime as long as they have committed the act of producing or selling counterfeit or shoddy goods. According to the provisions of Article 150 of this section, the unit can also become the subject of this crime.
(4) Subjective Elements
The subjective aspect of this crime is manifested in direct intent, i.e., the intentional passing off of "fake or inferior" as "genuine or good". This crime is mostly for the purpose of profit and illegal profits, but this article does not stipulate the purpose of profit is the subjective aspect of the crime must have the elements. Negligence does not constitute this crime.
Determination
(1) The boundary between crime and non-crime
According to this article, the production and sale of counterfeit and shoddy products must have a sales amount of 50,000 yuan or more in order to constitute a crime. Therefore, this crime is a result crime in the form of crime. If the sales amount is less than 50,000 yuan, it is a general offense, and may be subject to administrative penalties by the relevant industrial and commercial administrative departments.
(B) the production and sale of shoddy products, whether concurrent punishment
This crime is a selective crime, the production and sale of shoddy products is a selective element, as long as the perpetrator has implemented the production or sale of any of these acts, the provisions of this article applies to constitute the crime of production of shoddy products or sale of shoddy products. If the perpetrator has committed both the production of shoddy products and the sale of shoddy products, whether or not the crime is punishable by a combination of crimes should be analyzed differently according to different circumstances.
1, if the perpetrator of both the production of shoddy products, and sales of their own production of shoddy products, sales behavior is the continuation of the production of behavior, the two acts can not be punished jointly, and still according to the production and sale of shoddy products, a crime.
2, if the perpetrator of the production of shoddy products, and the sale of other people produced shoddy products, and sales of more than 50,000 yuan, the production of shoddy products and the sale of shoddy products shall be punished according to the crime of the crime of the two crimes.
(C) and the boundaries of fraud
Production, sales of shoddy products in general for the crime of adulteration in the product, fake, or substandard or substandard products as qualified products and other means of deception; and fraud is often also to pretend to be the sale of products of industrial and commercial activities to achieve. The two are often very easy to confuse. Both have essential differences:
(1) the violation of the object is different. This crime is the normal activities of market management and the legitimate rights and interests of the fee, including their personal health and property safety and other rights; and fraud is the ownership of property infringement.
(2) the purpose of the crime is different. This crime is generally manifested in order to obtain illegal profits for the purpose, but can also be for other illegal purposes, such as in order to unfair competition, through the production and sale of shoddy products posing as products produced for others, and destroying the reputation of others, in order to put themselves in an advantageous position, etc.; while the latter can only be for the purpose of illegal possession.
(3) the objective behavior of the manifestation of different ways. Fraud is completely fictitious, concealment of the truth of the method, so that the victim to produce illusion, believe the truth, and thus voluntarily "hand over the property", while the crime is in economic activities, in violation of business administration and other market management regulations, in the production, sales and other industrial and commercial activities, the use of jerry-built, adulteration, substandard products, fake as true, and substandard products as qualified products.
Criminal Law
Article 140 Producer, seller in the product adulteration, adulteration, fake for the real, substandard or substandard products for qualified products, the sales amount of more than 50,000 yuan less than 200,000 yuan, shall be sentenced to less than two years of fixed-term imprisonment or criminal detention, and or a single sales amount of more than 50% of the following two times the fine; the sales amount of more than 200,000 yuan less than five hundred thousand yuan, shall be sentenced to fixed-term imprisonment of not less than two years but not more than seven years, and shall be fined not less than fifty percent but not more than twice the amount of the sales; where the sales amount is more than five hundred thousand yuan but not less than two million yuan, shall be sentenced to fixed-term imprisonment of not less than seven years and shall be fined not less than fifty percent but not more than two times the amount of the sales; where the sales amount is more than two million yuan, shall be sentenced to fixed-term imprisonment of not less than fifteen years but not more than life imprisonment and shall be fined not less than fifty percent but not more than two times the fine or confiscation of property.
Article 149 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 if the sales amount is more than 50,000 yuan, the person shall be convicted and punished in accordance with the provisions of Article 140 of this Section. If the production or sale of the products listed in Articles 141 to 148 of this Section constitutes an offense under each of those 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 penalty.
Article 150 If a unit commits the crimes set forth in Articles 140 to 148 of this Section, the unit shall be sentenced to a fine and its directly responsible supervisors and other directly responsible persons shall be punished in accordance with the provisions of each of those articles.
Judicial Interpretation
The Supreme People's Court, the Supreme People's Procuratorate
"Interpretation of Several Issues Concerning the Specific Application of the Law in Handling Criminal Cases of Producing and Selling Fake and Shoddy Goods" (2001.4.5 Legal Interpretation 〔2001〕 No. 10)
In order to punish the production and sale of fake and shoddy goods in accordance with the law, according to the relevant provisions of the Criminal Law, the The following is an explanation of some issues on the specific application of the law in handling such cases:
Article 1 of Article 140 of the Criminal Law stipulates that "adulteration and counterfeiting in products" refers to the adulteration of products with impurities or foreign substances, so that the quality of the products does not conform to the quality requirements stipulated in the national laws and regulations or the express quality standards of the products, and reduces or loses the proper use of the behavior.
Article 140 of the Criminal Law stipulates that the "counterfeiting of the real" refers to the use of a product that does not have a certain performance to pretend to have the performance of the product behavior.
Article 140 of the Criminal Law stipulates that "passing off a good product for a good one" refers to the act of passing off a low-grade or low-grade product for a high-grade or high-grade product, or passing off a defective or used spare part as a genuine product or a new product by combining or assembling them.
Article 140 of the Criminal Law provides for "substandard products", which refers to products that do not meet the quality requirements set forth in the second paragraph of Article 26 of the Law of the People's Republic of China on the Quality of Products.
The provisions of this article of the above behavior is difficult to determine, shall be entrusted to the laws and administrative regulations of the product quality inspection agency for identification.
The "sales amount" stipulated in Article 140 and Article 149 of the Criminal Law refers to all the illegal income that the producer or seller has earned or should have earned after selling the counterfeit or shoddy products.
If the counterfeit or shoddy products have not yet been sold, and the value of the goods reaches more than three times the sales amount stipulated in Article 140 of the Criminal Law, the person shall be convicted and punished for the crime of producing or selling counterfeit or shoddy products (attempt).
The amount of the value of the goods shall be calculated on the basis of the marked price of the illegally produced or sold counterfeit or shoddy products; if there is no marked price, it shall be calculated on the basis of the mid-market price of similar qualified products. If the amount of the value of the goods is difficult to determine, the designated appraisal organization shall be commissioned to determine it in accordance with the provisions of the Measures for the Administration of Appraisal of Seized, Recovered and Confiscated Goods, which was jointly issued by the State Planning Commission, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on April 22, 1997.
Multiple times of committing the act of producing or selling shoddy products without being dealt with, the amount of sales of shoddy products or the amount of the value of the goods is calculated cumulatively.
Article 3: If a drug testing organization set up or determined by the drug supervision and management department at or above the provincial level identifies that the counterfeit drug produced or sold has one of the following circumstances, it shall be deemed to be "sufficient to seriously jeopardize human health" as stipulated in Article 141 of the Criminal Law:
(1) it contains toxic and harmful substances that are in excess of the standard;
(2) it contains a substance that is toxic and harmful to the human body; and
(a) Containing toxic and hazardous substances in excess of the standard;
(b) Not containing the indicated active ingredients, which may cause delay in diagnosis and treatment;
(c) Indications or functions indicated are beyond the scope of the regulations, which may cause delay in diagnosis and treatment;
(d) Lacking the indicated active ingredients necessary for first aid.
The production and sale of counterfeit medicines shall be recognized as "causing serious harm to human health" if the use of such medicines results in minor or serious injuries or other serious consequences.
The production and sale of counterfeit medicines that cause serious disability, serious injury to more than three persons, minor injury to more than ten persons or other particularly serious consequences shall be recognized as "causing particularly serious harm to human health".
Article 4 by the provincial or above health administrative department to determine the institutions, food containing harmful bacteria or other pollutants that may lead to serious food poisoning accidents or other serious food-borne illnesses exceeding the standard, shall be recognized as the criminal law Article 143 "sufficient to cause serious food poisoning accidents or other serious food-borne illnesses ".
The production and sale of food that does not meet hygiene standards shall be recognized as "causing serious harm to human health" if the food is consumed and causes minor or serious injuries or other serious consequences.
The production and sale of food that does not meet hygiene standards shall be recognized as "particularly serious consequences" if it causes death, serious disability, serious injury to more than three people, minor injury to more than ten people, or other particularly serious consequences after being consumed.
Article 5 of the production and sale of poisonous and harmful foods, after being consumed, resulting in minor injuries, serious injuries or other serious consequences, shall be recognized as "causing serious harm to human health" as stipulated in Article 144 of the Criminal Law.
If the production or sale of toxic or hazardous food causes serious disability, serious injury to more than three persons, light injury to more than ten persons or other particularly serious consequences, it shall be recognized as "causing particularly serious harm to human health".
Article 6 of the production and sale of medical devices and sanitary materials that do not meet the standards, causing minor injuries or other serious consequences, shall be recognized as "causing serious harm to human health" as stipulated in Article 145 of the Criminal Law.
The production and sale of non-standard medical devices and sanitary materials for medical use, resulting in the infection of viral hepatitis and other incurable diseases, serious injuries to more than one person, more than three people with minor injuries, or other serious consequences, shall be recognized as "particularly serious consequences".
The production and sale of substandard medical devices and sanitary materials, resulting in death, serious disability, AIDS infection, serious injury to more than three people, more than ten people with minor injuries, or other particularly serious consequences, shall be recognized as "particularly serious circumstances".
Medical institutions or individuals who know or should know that the medical equipment and medical sanitary materials do not meet the national or industrial standards for safeguarding human health, but purchase or use them, causing serious harm to human health, shall be punished by conviction for the crime of selling substandard medical equipment.
No national standards, industry standards for medical devices, registered product standards can be regarded as "industry standards to protect human health".
Article 7 of Article 147 of the Criminal Law, the production and sale of shoddy pesticides, veterinary drugs, fertilizers, seeds, the crime of "making the production suffered a large loss", generally 20,000 yuan as a starting point; "significant loss", generally 100,000 yuan as a starting point; The starting point for "particularly significant losses" is generally 500,000 yuan.
Article 8: Where an employee of a state organ acts out of favoritism, and fails to perform his or her duties as prescribed by law in investigating or dealing with the crime of producing or selling counterfeit or shoddy goods, any of the following circumstances shall be considered as "aggravating circumstances" as stipulated in Article 414 of the Criminal Law:
(1) Indulging in the crime of producing or selling counterfeit medicines, or poisonous or harmful food;
(2) indulging in the production or sale of counterfeit or shoddy goods which may be sentenced to more than two years' imprisonment according to the law;
(3) failing to fulfill the responsibility of investigating more than three units or individuals who have committed the crime of producing or selling counterfeit or shoddy goods;
(4) causing the interests of the state and the people to suffer major losses or causing adverse effects
Ninth.
Article 9 knew or should have known that others to commit the crime of production and sale of counterfeit and shoddy goods, and provide loans, funds, account numbers, invoices, certificates, licenses, or production, business premises or transport, storage, custody, mailing and other facilitation, or to provide counterfeiting production technology, the production and sale of counterfeit and shoddy goods for the crime of the **** offender.
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 of the provisions of the heavier punishment.
Article 11 of the Criminal Law, Article 140 to 148 of the crime, and the use of violence and threats to resist investigation and punishment, constitute other crimes, in accordance with the provisions of the combined punishment of several crimes shall be punished.
Article 12: If a staff member of a state organ participates in the crime of producing or selling counterfeit or shoddy goods, he or she shall be punished more severely.
Objects of crime
According to the provisions of the Product Quality Law, products subject to the supervision of product quality management are those that have been processed, made and used for sale, except for construction projects and military products, as well as products such as drugs, which are strictly prohibited by the state from being circulated freely. Thus, as the production and sale of shoddy products crime object of the product, can be used for the circulation of industry, agriculture, daily life and other aspects of movable property, as well as military to civilian products, high-tech products can be circulated these types of products to become the subject of the crime in theory, judicial practice, there is generally no ambiguity. However, such as construction projects, military products, restriction of circulation can become the object of this crime, there is no doubt.
Based on the notion that commodities are products that are used to meet people's needs and condense human labor through exchange into consumption, we believe that the correct definition of the crime of production and sale of counterfeit and shoddy goods, first of all, should be the purpose of the exchange of this criterion to start with, where the production and sale of counterfeit and shoddy products are not enough for others, the purpose of the social use of the purpose of the purpose that is not to the purpose of the exchange, it can not be characterized according to the production and sale of counterfeit and shoddy products. The production and sale of counterfeit and shoddy products crime characterization. The production and sale of shoddy goods as the criminal object of "goods" connotation, the identification of shoddy goods is crucial.
Fake and shoddy goods in the administrative regulations in the meaning is not unified, there is a "broad, narrow points, such as the State Council in 1989, "on the severe punishment of those responsible for the distribution of fake and shoddy goods," the views of the fake and shoddy goods include: (1) failure, deterioration of; (2) endangering the safety and health of the human body; (3) the indicators marked with the actual inconsistency; (4) fraudulent use of high-quality or certification mark and license mark; (5) adulteration of the product. License mark; (5) adulteration, fake or old for new; (6) the relevant state laws and regulations expressly prohibit the production and sale. This is the broad definition of shoddy goods. At the same time, the State Council also provides that the distribution of certain products, pointed out by the non-corrective, that is, as the distribution of shoddy goods.
These products include: (1) no inspection certificate or no relevant units allowed to sell the certificate; (2) not marked in Chinese the name of the goods, the producer and the place of origin (important industrial products are not marked with the address); (3) limited to the use of the time and not marked with the expiration time; (4) the implementation of the production (manufacturing) license management is not marked with a number and the validity of the period; (6) the high standard of consumer durables with no Chinese instructions; (7) is the treatment of the goods (including inferior products, such as inferior products), and so on. Containing inferior products, such as inferior products) and not in the goods or packaging in a conspicuous part of the word marked "treatment"; (8) highly toxic, flammable, explosive and other hazardous materials and not marked with the relevant indicators and instructions for use. Therefore, in a sense, these goods are also shoddy products, which is used in a broader sense.
"Product Quality Law," Article 37, 38, 40 of the shoddy products include: (1) does not meet the protection of human health, personal and property safety of national standards, industry standards of products: (2) adulteration, adulteration, fake for real, second-best products; (3) unqualified products; (4) failures, deterioration of the product. These belong to the narrower definition of shoddy goods. Article 140 of the 1997 Penal Code provides for four kinds of shoddy goods that belong to the narrower definition of shoddy goods. According to the provisions of these regulations, the legal liability for the production and operation of the above mentioned shoddy goods can be civil, economic, criminal or administrative. Therefore, there are different opinions in understanding the criminal object as the crime of producing and selling counterfeit and shoddy products: there are those who define the scope of the Product Quality Law by the provisions of Articles 37, 38 and 40; there are those who define the scope of the counterfeit and shoddy products by the four modes of behaviors stipulated in Article 140 of the Penal Code; there are those who describe the four modes of behaviors stipulated in Article 140 of the Penal Code only in terms of objective aspects and do not deal with counterfeit and shoddy goods Definition; some after defining the scope of shoddy products in accordance with the Product Quality and Quantity Law, but in determining the objective aspects of this crime, the scope of "shoddy products" is narrowed in accordance with the provisions of the Criminal Law.
Subjective aspects
This crime in the subjective aspect of the performance of intent, which has been achieved in the theory of **** knowledge, but the content of intent is not without debate, the theory of the main existence of three points of view: (1) claim that the crime is limited to the indirect intent, not including direct intent. This includes two opinions. One is that the content of this crime is manifested as "the perpetrator intentionally violates the state supervision and management of product quality laws and regulations, knowing that the production and sale of shoddy goods will occur to the detriment of human health and safety of persons and property, damage to the user, the results of consumers, in order to make profits and let such harmful results occur." The second is that the intentional content of this crime is manifested as "the perpetrator knows that violating the state laws and regulations on product quality supervision and management, production and sale of shoddy products will happen to infringe on the legitimate rights and interests of enterprises and consumers, and indulges in the occurrence of such harmful results." (2) this claim does not specify the intent of this crime for direct intent, or indirect intent, but only the intentional content of the description, such as the view that "the we intentionally refers to the perpetrator knows that he produces, sells is expressly prohibited by law of shoddy products, but still production, sales." Some believe that the perpetrator's willfulness is manifested as "the intentional manufacture of shoddy products in the field of production, and in the field of sales in two cases: one is in the sale of products intentionally adulterated, adulterated; and the second is to know that it is a shoddy product and sell." Others believe that the willfulness is manifested as "knowingly carrying out the adulteration, adulteration, passing off as genuine, passing off as good or passing off unqualified products as qualified products that one engages in the production and sale of the product." (3) It is asserted that the intent of this crime "is both direct and indirect. The content of the willfulness is to produce and sell the product knowing that it is a shoddy product."
〈二〉Willful content of the "knowingly"
Since in this crime, the producer, the seller of counterfeit and shoddy products production, sales are known, then there is a how to determine the "knowingly" of the problem. In criminal law theory, "know" includes already know and should know two clock situation, the so-called "already know", that is, the fact that will occur and its harmfulness has been known to understand; the so-called "should know The so-called "should have known" means that the perpetrator's knowledge of certain facts and their harmfulness is inferred from his age, experience, education, position, occupation and duties. Generally, in judging the subjective culpable knowledge of this crime, it is difficult to determine the natural determination of ought to know.
For the production of shoddy products, "knowingly" as the form of guilt is self-evident. The state has formulated the "product quality law" and some other industrial and agricultural products production quality supervision and management laws and regulations, detailed provisions of various products of various production standards and other relevant quality standards, do not meet these quality standards of the product shall not be put on the market. Therefore, the production of high-quality, qualified products is the producer's legal responsibility and obligation, the producer of its production of products in line with the relevant production standards and quality standards, has the legal obligation to pay attention to, if in the case of knowing does not meet the production standards, but still carry out the production, undoubtedly a willful behavior. And in the production process of the product adulteration, adulteration, or fake products as real products, inferior products as high quality products, genuine products, unqualified products as qualified products these behaviors are undoubtedly with intentional psychology, because the production of products, product quality is required after layers of customs clearance. On whether the seller is aware of their own sales of shoddy products, need to be scientifically grasp and determine. In judicial practice, determine whether the seller knows, should not rely solely on confession, should be based on all subjective and objective conditions for a comprehensive measure, through the specific circumstances of the case, the psychological state of the seller for a comprehensive analysis and judgment. In my opinion, the judgment of this "knowingly, mainly analyze the following points: (1) the price of the transaction between the buyer and seller. If the transaction price is significantly lower than the market price, it can be determined that the perpetrator "knowingly". (2) whether the proper channels of purchase, the seller has the proper legal procedures. If the near goods channels, purchase means are not legitimate, the perpetrator should foresee the purchase may be shoddy products. If still purchased and to be sold, the perpetrator can be found "knowingly"; (3) whether the product quality mark. If the product should have no corresponding quality mark, can be determined that the perpetrator knows that the sale of shoddy products; (4) the sale, handover of shoddy products, as well as the time and place. If the use of non-normal ways and means of trading, the perpetrator may know that the shoddy products and sales. In addition, if some special products, the seller should also have a certain professional identification of the ability to recognize, in the case of the perpetrator does not have the ability to recognize these special products, the perpetrator may be whether the shoddy products can not know, if the perpetrator has this understanding of the ability to recognize, and still purchase shoddy products to be sold, can be determined that the perpetrator of the" knowingly". Of course, in the determination of the perpetrator of the sale of shoddy products whether the act of knowledge, should be a combination of the above factors for consideration, rather than cut off their intrinsic connection. Only through the correct determination of producers, sellers of subjective state of mind, to determine the production and sale of shoddy products is intentional, we can correctly understand the spirit of the legislation, neither to indulge some criminals. Nor to those who really do not "know" the perpetrators.
〈三〉Production and sale of shoddy products in the sales amount
In the punishment of production and sale of shoddy products, the sales amount is the main basis for conviction and sentence. And the criminal law is the production of shoddy products, sales of shoddy products as a selective crime provisions. Thus, as a pure production of shoddy products, the sales amount of how to determine, there is no doubt.
Therefore, how to determine the amount of sales, the judicial application of the production and sale of shoddy products is a difficult problem. At present, there is no uniform interpretation of judicial practice and calculation of the standard, and the sales amount of the theory of two different points of view: one is that the sales amount refers to the "producers, sellers of shoddy goods sold without deducting the cost of all the illegal income, taxes, etc.". The second is that the sales amount "refers to both the actual amount of products that have been sold, but also refers to the amount of products that have not yet been sold but may be sold." Or it refers to "the amount of money spent on the production and sale of shoddy products." Or refers to "the total value of the production and sale of shoddy goods."