How to characterize the transport of counterfeit Cigarettes produced in Taiwan

Criminal trial reference [No. 212] Gao Qiusheng, Lin Yiyi and other illegal business cases

I. [Basic Facts of the Case]

On the morning of July 17, 2000, defendants Gao Qiusheng, Lin Yi, Fang Zhiying, and Li Fenjia, knowing that they were tobacco products and did not have a permit for transportation, were entrusted by Fang Zhixiong (handled in a separate case) to transport 318 boxes of counterfeit Taiwan-made longevity brand cigarettes from Pumei Town, Yunxiao County, Fujian Province, to Nan'an City, Gao Qiusheng and Lin Yi drove a Dongfeng brand van (car number Min E01879) to transport them, and Fang Zhiying and Li Fenjia drove a Golden Dragon brand station wagon (car number Min E80197) to explore the road in front. When the longhai section of the Xiazhang Expressway was seized by the Longhai Municipal Public Security Bureau.

The Longhai Municipal People's Court held that the procuratorate's allegation that the four defendants had committed the crime of illegal business operation was established. The four defendants all played a secondary role in the joint crime, all of them were accessories, and their attitude of admitting guilt was good, and they should be given a lenient punishment, and the defenders of the defendants Gao Qiusheng, Lin Ti, and Li Fenjia suggested that the three defendants be given a lighter punishment. Once the conduct of the four defendants was committed, it constituted the completion of the crime, and the opinion of the three defenders that the case was an attempted crime was not adopted. Pursuant to the provisions of article 225 (1), article 25, paragraph 1, article 27 and article 64 of the Criminal Law of the People's Republic of China, the judgment on May 10, 2001 was as follows:

1. Defendant Gao Qiusheng committed the crime of illegal business operation and was sentenced to three years' imprisonment;

2. Defendant Lin Yi committed the crime of illegal business operation and was sentenced to three years' imprisonment;

3. Defendant Fang Zhiying committed the crime of illegal business operation and was sentenced to three years' imprisonment;

4. Defendant Li Fenjia committed the crime of illegal business operation and was sentenced to three years' imprisonment;

5. The seized means of transport, Dongfeng brand truck and Golden Dragon brand station wagon, shall be confiscated.

After the first-instance judgment was pronounced, all four defendants appealed.

II. [Judgment Point of View]

After trial, the Zhangzhou Intermediate People's Court held that, with regard to the opinion that the appellants and their defenders had submitted that the appellants' conduct was an attempted crime, upon investigation, the four appellants in this case had carried and operated 318 boxes of counterfeit tobacco products without permission, and were caught on the spot by the public security cadres and policemen. With regard to the opinion of the defenders of the appellants Gao Qiusheng and Fang Zhiying requesting a value appraisal of the seized counterfeit cigarettes, after investigation, because the longevity brand cigarettes produced in Taiwan did not circulate in the market of Chinese mainland, the original judgment did not determine the price of the 318 boxes of counterfeit Taiwan-made longevity brands seized by the investigation organs in this case, and the four appellants specifically carried out the act of transporting 318 boxes of counterfeit cigarettes without permission, which has seriously disrupted market order and the circumstances are serious, so the defender's defense opinion does not conform to the objective facts of this case. With regard to the appellant Lin Ti, appellant Fang Zhiying and his defender's respective requests for exemption and probation, the reasons for appeal and defense opinions on the application of exemption and probation were investigated, and according to the specific facts and circumstances of the case, it was not appropriate to apply the exemption or probation to the appellants. The appellants Gao Qiusheng, Lin Ti, Fang Zhiying and Li Fenjia violated state regulations, and after being gathered by the appellant Gao Qiusheng without permission, they cooperated with each other to carry and operate 318 boxes of counterfeit tobacco products for others, disrupting market order, the circumstances were serious, and the acts of the four appellants all constituted the crime of illegal business operation. In the course of the illegal operation of the transport act, the joint criminal acts of the four appellants play a secondary role, are accessories, and after the case occurs, the attitude of admitting guilt is better, and the punishment shall be mitigated according to law. The appellant, Gao Qiusheng, gathered the other three appellants while carrying and operating counterfeit tobacco, and his status and role were slightly higher than those of the other three appellants. The facts determined by the Longhai Municipal People's Court in the original trial are clear, the evidence is credible and sufficient, the conviction is accurate, and the trial procedures are lawful. However, the original judgment imposed heavy sentences on the appellants Lin Ti, Fang Zhiying and Li Fenjia and should be corrected. In accordance with the provisions of Article 225 (1), Article 25( 1), Article 27 and Article 64 of the Criminal Law of the People's Republic of China and Article 189 (1) and (2) of the Criminal Procedure Law of the People's Republic of China, the judgment on March 21, 2002 is as follows:

1. Uphold the conviction and sentencing of defendant Gao Qiusheng in item 1 of the criminal judgment of the Longhai Municipal People's Court, the conviction of defendants Lin Yi, Fang Zhiying, and Li Fenjia in items 2, 3, and 4, and the judgment that the Dongfeng brand truck and the Golden Dragon brand station wagon seized in item 5 are confiscated.

2. Revoke the sentencing portion of the longhai Municipal People's Court's criminal judgment in items 2, 3 and 4 of the criminal judgment against defendants Lin Yi, Fang Zhiying, and Li Fenjia.

3. The appellant, Lin Yi, committed the crime of illegal business operation and was sentenced to two years' imprisonment.

4. The appellant, Fang Zhiying, committed the crime of illegal business operation and was sentenced to two years' imprisonment.

5. The appellant, Li Fenjia, committed the crime of illegal business operation and was sentenced to two years' imprisonment.

III. [Grounds for Trial]

(1) Illegally operating counterfeit cigarettes produced in Taiwan, where the circumstances are serious, constitutes the crime of illegal business operation

Article 3 of the Tobacco Monopoly Law of the People's Republic of China stipulates: "The State shall exercise monopoly management over the production, sale, import and export of tobacco monopoly products in accordance with the law, and implement a tobacco monopoly licensing system." "Cigarettes produced in Taiwan are not allowed to circulate in the mainland, but cigarettes are franchised and monopolistic articles stipulated by the laws of the mainland, so it is illegal to operate counterfeit Taiwan-made longevity brand cigarettes without authorization in violation of laws and regulations." If the market order is disturbed and the circumstances are serious, it shall be convicted and punished as the crime of illegal business operation. The establishment of the crime of illegal business operation requires "disrupting market order with serious circumstances". Referring to article 70 of the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on The Standards for Prosecuting Economic Crime Cases, in cases of illegal business operations, "the amount of illegal business operations by individuals is more than 50,000 yuan, or the amount of illegal gains is more than 10,000 yuan; Where the amount of illegal business operations of a unit is more than 500,000 yuan, or the amount of illegal income is more than 100,000 yuan", a case may be filed and prosecuted. Generally speaking, the "serious circumstances" and "particularly serious circumstances" of the crime of illegal business operation are manifested as the amount of illegal business operation or the amount of illegal income being large or huge, but considering the complexity of illegal business operations, in practice, there are circumstances in which the amount of illegal business operations and the amount of illegal gains cannot be determined. Therefore, the determination of "serious circumstances" and "particularly serious circumstances" constituting the crime of illegal business operation shall be based on the circumstances such as the number and amount of the perpetrator's illegal business operation crimes, and the correct judgment shall be made.

In this case, the determination of the total value of the counterfeit longevity brand cigarettes transported by the defendants was a situation in which "the value of the goods is difficult to determine". Paragraph 3 of Article 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Producing and Selling Counterfeit and Shoddy Commodities stipulates:

"The value of the goods is calculated by the list price of counterfeit and shoddy products produced or sold in violation of the law; If there is no list price, it shall be calculated according to the market intermediate price of similar qualified products. Where it is difficult to determine the value of the goods, the value of the goods shall be determined by entrusting the designated valuation agency in accordance with the provisions of the Measures for the Administration of the Valuation of Seized, Recovered and Confiscated Articles 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. Article 4 of the Measures for the Administration of the Valuation of Seized, Recovered and Confiscated Articles stipulates: "For the seized, recovered and confiscated precious cultural relics, precious and endangered animals and their products, rare plants and their products, drugs, obscene materials, firearms, ammunition, etc., which are not based on the price amount as the standard for conviction and sentencing, there is no need for valuation." Because the "longevity" brand cigarettes produced in Taiwan have not been circulated in the Chinese mainland market, and there is no market price of similar qualified products that can be referred to and valued, and the crime of illegal business operation does not require the price amount as the only criterion for conviction and sentencing, the defendant's defender's opinion requesting a value appraisal has no legal basis, and the courts of first and second instance found that the defendant's criminal circumstances were correct based on the quantity of counterfeit cigarettes transported.

(2) Gao Qiusheng and the other four defendants knowingly transported cigarettes made in Taiwan for others, constituting accomplices in the crime of illegal business operation

Article 22 of the Tobacco Monopoly Law of the People's Republic of China stipulates: "Consignment or self-shipment of tobacco monopoly products must hold a permit issued by the competent administrative department for tobacco monopoly or an institution authorized by the competent administrative department for tobacco monopoly; Without a permit for carriage, the carrier shall not carry the carriage. Although the Tobacco Monopoly Law does not stipulate that criminal responsibility should be pursued for such acts, it cannot be simply concluded that this case does not comply with the provisions of Article 225 of the Criminal Law, and the acts of the defendants do not constitute the crime of illegal business operation. With regard to the characterization of illegal transport, in accordance with the provisions of the Criminal Law of the Mainland, the Criminal Law sub-provisions regulate the transport of firearms, ammunition, explosives, nuclear materials, counterfeit currency, drugs, seeds of narcotic plants, seedlings and other specific objects. For other illegal transport acts that are clearly known to be carried out by others for illegal or criminal activities, a joint crime shall be established in accordance with the relevant provisions of the General Provisions of the Criminal Law on joint crimes, and the transporter is a helper or perpetrator of the relevant crime. Therefore, whether the act of providing transportation services to others knowingly operating fake cigarettes illegally constitutes the crime of illegal business operation is to see whether the direct operator of fake cigarettes constitutes the crime. Specific to this case, the cargo owner Fang Zhixiong (handled in a separate case) illegally operated 318 boxes of counterfeit Taiwan-made longevity brand cigarettes, a huge number, and his behavior was "disrupting market order and the circumstances were serious", which undoubtedly constituted the crime of illegal business operation. The defendants in this case knew that the cargo owner, Fang Zhixiong, was illegally engaged in counterfeit cigarettes and helped him transport them, and his conduct had also constituted a joint crime of illegal business, all of which were accomplices and should be given a lenient punishment according to law.

In summary, the courts of first and second instance in this case found that the four defendants constituted the crime of illegal business operation, and they were all accessories. Taking into account Gao Qiusheng's role in the process of illegal transportation, the court of second instance found that his criminal responsibility was heavier than that of the other three defendants, and changed the sentence to the other three defendants in accordance with law, and the sentence was appropriate.

IV. [Source of the Case]

Criminal Trial Reference (2002, Episode 6, Episode 29)