Legal subjectivity:
The crime of producing and selling counterfeit drugs is a dangerous crime. The production and sale of counterfeit drugs endangers public safety and poses a serious threat to human life and health. . The objective aspect of this crime: The objective aspect is that producers and sellers violate national drug management laws and regulations by producing and selling counterfeit drugs, which is enough to seriously endanger human health. Violations of laws and regulations on drug management mainly refer to violations of the "Drug Administration Law of the People's Republic of China" and the "Implementation Measures of the Drug Administration Law of the People's Republic of China" and "Drug Production Quality" formulated to implement this law. Management Standards" and other laws and regulations. The above-mentioned laws and regulations clearly stipulate the content of drug production, operation and management such as drug ingredients, drug standards, drug production process procedures, drug business conditions, and drug supervision. Article 141, Paragraph 2, of the Criminal Law stipulates: "Counterfeit drugs as mentioned in this article refer to drugs and non-drugs that are counterfeit drugs and treated as counterfeit drugs in accordance with the provisions of the Drug Administration Law of the People's Republic of China." Production The behavior of counterfeit drugs refers to all activities of manufacturing, processing, collecting and collecting counterfeit drugs, and the behavior of selling counterfeit drugs refers to all activities of providing counterfeit drugs for a fee. Producing and selling counterfeit medicines are two acts that can be carried out separately, or both producing and selling counterfeit medicines can exist at the same time. According to the objective behavioral provisions of the law on this crime, as long as one of the behaviors is present, it meets the objective requirements of the crime. If the perpetrator commits the above two behaviors at the same time, it will still be regarded as one crime of producing and selling counterfeit drugs, and the concurrent punishment for multiple crimes will not be implemented. The production and sale of counterfeit medicines are enough to seriously endanger human health, which is in line with the statutory result of this crime. This shows that this crime is a dangerous crime in terms of criminal form. Those who produce and sell counterfeit drugs that cause serious harm to human health are crimes with aggravated consequences and are subject to heavier penalties. The law is objective:
[Criminal Law Articles] Article 141 Whoever produces or sells counterfeit medicines shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined; if it causes serious harm to human health or has other If the circumstances are serious, the person shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years, and shall also be fined; if the crime causes death or there are other particularly serious circumstances, the person shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment, or death, and shall also be fined or have property confiscated. The term "counterfeit drugs" as mentioned in this article refers to drugs and non-drugs that are counterfeit drugs and treated as counterfeit drugs in accordance with the provisions of the "Drug Administration Law of the People's Republic of China". Article 149 The production and sale of the products listed in Articles 141 to 148 of this section does not constitute a crime stipulated in the respective articles, but if the sales amount exceeds 50,000 yuan, Convicted and punished in accordance with the provisions of Article 140 of this Section. Aggravating circumstances: Producing and selling the products listed in Articles 141 to 148 of this section constitutes the crimes stipulated in each of those articles, and at the same time constitutes the crime stipulated in Article 140 of this section. , convicted and punished in accordance with the provisions of heavier penalties. Article 150 If a unit commits the crimes stipulated in Articles 140 to 148 of this section, the unit shall be fined, and the persons directly in charge and other directly responsible persons shall be fined in accordance with the respective regulations. The penalties specified in this article. Judicial Interpretation of the Supreme People's Procuratorate and the Ministry of Public Security's "Regulations on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (I)" (Gongtongzi [2008] No. 36) Article 17 [Case of Producing and Selling Counterfeit Drugs (Criminal Law No. 1) Article 141)] Production (including preparation) and sale of counterfeit drugs, if suspected of any of the following circumstances, shall be investigated and prosecuted: (1) Containing toxic and harmful substances exceeding the standard; (2) Containing no effective ingredients as indicated Ingredients, which may delay diagnosis and treatment; (3) The indicated indications or functions are beyond the prescribed scope, which may cause delay in diagnosis and treatment; (4) Lack of effective ingredients necessary for first aid as indicated; (5) Other substances that can seriously harm the human body health or causing serious harm to human health. The "counterfeit drugs" specified in this article refer to drugs and non-drugs that are counterfeit drugs and treated as counterfeit drugs 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's "Supplementary Provisions on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (I)" Gongtongzi [2017] No. 12 2. Modify Article 17 of the "Standards for Filing and Prosecution (I)" Those who produce and sell counterfeit drugs for: [Case of Producing and Selling Counterfeit Drugs (Criminal Law Article 141)] shall be prosecuted. However, sales of a small amount of drugs that are privately processed according to traditional folk formulas, or sales of a small amount of foreign or overseas drugs imported without approval, without causing harm to others or delaying diagnosis and treatment, except for cases where the circumstances are obvious and minor and the harm is not great. For the purpose of producing and selling counterfeit drugs, any one of the following circumstances falls under the "production" stipulated in this article: 1. Synthesizing, refining, extracting, storing, processing and concocting pharmaceutical raw materials; (2) Consolidating pharmaceutical raw materials, excipients, packaging In the process of making materials into finished products, batching, mixing, preparation, storage, and packaging are carried out; (3) Packaging materials, labels, and instructions are printed. Medical institutions or medical institution staff who knowingly provide counterfeit medicines to others for a fee, or purchase or store medicines for sale, fall under the “sale” provisions of this article. The "counterfeit drugs" specified in this article refer to drugs and non-drugs that are counterfeit drugs and treated as counterfeit drugs in accordance with the provisions of the "Drug Administration Law of the People's Republic of China". If it is difficult to determine whether a drug is a counterfeit drug, it can be determined 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. The Supreme People's Court and the Supreme People's Procuratorate's "Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases Endangering Drug Safety" Fa Interpretation [2014] No. 14 (1626th Meeting of the Judicial Committee of the Supreme People's Court on September 22, 2014, March 2014 Adopted at the 18th meeting of the 12th Procuratorial Committee of the Supreme People's Procuratorate on the 17th) In order to punish crimes endangering drug safety in accordance with the law, protect the lives, health and safety of the people, and maintain the order of the drug market, in accordance with the provisions of the "People's Republic of China and the Criminal Law of the People's Republic of China" , several issues concerning the application of laws in handling such criminal cases are explained as follows: Article 1 Whoever produces or sells counterfeit drugs under any of the following circumstances shall be severely punished as appropriate: (1) The counterfeit drugs produced or sold are for pregnant women, Infants, children or critically ill patients are the main targets of use; (2) The counterfeit drugs produced and sold are narcotic drugs, psychotropic drugs, medical toxic drugs, radioactive drugs, contraceptives, blood products, and vaccines; (3) Production , The counterfeit drugs sold are injection drugs and emergency drugs; (4) Medical institutions and staff of medical institutions produce and sell counterfeit drugs; (5) In the event of natural disasters, accidents, public health incidents, and social security incidents Producing and selling counterfeit drugs to deal with emergencies during such emergencies; (6) Having received administrative or criminal penalties for illegal and criminal activities endangering drug safety within two years; (7) Others who should be severely punished as appropriate situation. Article 2 Whoever produces or sells counterfeit drugs under any of the following circumstances shall be deemed to have "caused serious harm to human health" as stipulated in Article 141 of the Criminal Law: (1) Causing minor or serious injuries; (2) ) causing mild disability or moderate disability; (3) causing damage to organs and tissues leading to general dysfunction or severe dysfunction; (4) other situations that cause serious harm to human health. Article 3 Whoever produces or sells counterfeit drugs under any of the following circumstances shall be deemed as “other serious circumstances” stipulated in Article 141 of the Criminal Law: (1) Causing a major public health emergency ; (2) The production and sales amount is more than 200,000 yuan but less than 500,000 yuan; (3) The production and sales amount is more than 100,000 yuan but less than 200,000 yuan, and one of the circumstances specified in Article 1 of this Interpretation occurs; (4) The circumstances should be determined to be serious based on the time, quantity, type of counterfeit medicine, etc. of production and sales.
Selling a small amount of drugs processed privately based on 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, will not be considered a crime. Article 12 Anyone who commits the crime of producing or selling counterfeit drugs shall generally be sentenced to a fine of more than twice the amount of production or sales in accordance with the law. If the perpetrators commit the same crime, the total fine imposed on the perpetrators shall be more than twice the amount of production and sales. Article 13 If a unit commits a crime stipulated in this Interpretation, the unit shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the conviction and sentencing standards for natural person crimes stipulated in this Interpretation. Article 14 If it is difficult to determine whether it is a "counterfeit drug" or "inferior drug" as stipulated in Articles 141 and 142 of the Criminal Law, the judicial authority may make a determination based on the determination issued by the drug regulatory department at or above the prefectural or municipal level. Opinions and other relevant materials for identification. 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. Article 15 The term “production and sales amount” as mentioned in this Interpretation refers to the income from the production and sale of counterfeit and substandard drugs and all illegal income available. Article 16 The "minor injuries" and "serious injuries" specified in this interpretation shall be evaluated in accordance with the "Standards for Appraisal of Human Body Injury Degrees". The "mild disability", "moderate disability" and "severe disability" specified in this interpretation shall be assessed in accordance with the relevant disability grade assessment standards. Article 17 After this interpretation is promulgated and comes into effect, the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Producing and Selling Counterfeit and Substandard Drugs" (Fa Interpretation [2009] No. 9) will be abolished at the same time; If previously issued judicial interpretations and normative documents are inconsistent with this interpretation, this interpretation shall prevail. The Supreme People's Court and the Supreme People's Procuratorate's "Interpretations on Several Issues Concerning the Specific Application of Laws in the Handling of Criminal Cases concerning the Production and Sale of Counterfeit and Substandard Products" (has expired) Article 3 Upon the appraisal by a drug inspection agency established or determined by the drug regulatory department at or above the provincial level, the production If the counterfeit medicine sold has any of the following circumstances, it shall be deemed to be "sufficient to seriously endanger human health" as stipulated in Article 141 of the Criminal Law: (1) Containing toxic and harmful substances exceeding the standard; (2) Containing no The marked active ingredients may delay diagnosis and treatment; (3) The indicated indications or functional indications are beyond the prescribed scope, which may cause delays in diagnosis and treatment; (4) The marked effective ingredients necessary for first aid are lacking. If the counterfeit drugs produced and sold are used and cause minor injuries, serious injuries or other serious consequences, they shall be deemed to have "caused serious harm to human health." If the counterfeit medicines produced and sold are used, causing severe disability, serious injuries to three people, minor injuries to more than ten people, or other particularly serious consequences, they should be deemed to have "caused particularly serious harm to human health." Article 9 Knows or should know that others are committing the crime of producing or selling counterfeit and inferior goods, and provides them with loans, funds, account numbers, invoices, certificates, licenses, or provides production and business premises or convenient conditions for transportation, warehousing, storage, mailing, etc. , or providing counterfeit production technology, will be punished as a criminal who commits the crime of producing and selling fake and inferior goods. Article 10 If the crime of producing or selling counterfeit and inferior goods is committed, and it also constitutes other crimes such as infringement of intellectual property rights, illegal business operations, etc., the person shall be convicted and punished in accordance with the provisions of heavier penalties. Article 11 Whoever commits a crime stipulated in Articles 140 to 148 of the Criminal Law and resists investigation and punishment by means of violence or threats, thereby constituting other crimes, shall be punished in accordance with the provisions of concurrent punishment for multiple crimes. Article 12 Any state agency staff member who participates in the crime of producing or selling counterfeit and inferior goods shall be severely punished. If this crime also constitutes the "crime of producing and selling counterfeit and inferior products" in Article 140, he shall be convicted and punished in accordance with the provisions on heavier penalties. (Criminal Law, Article 149, Paragraph 2)