What kind of criminal punishment is imposed on the production and sale of fake seeds? Recently, the Supreme People's Court has made a relevant interpretation.
Article 147 of the Criminal Law stipulates that anyone who produces fake pesticides, fake veterinary drugs or fake chemical fertilizers, sells pesticides, veterinary drugs, fertilizers or seeds that he knows to be fake or has lost their effectiveness, or where the producer or seller passes off substandard pesticides, veterinary drugs, fertilizers or seeds as qualified pesticides, veterinary drugs, fertilizers or seeds, causing relatively large losses in production, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and/or shall be fined not less than 50% but not more than two times the amount of sales; where production suffers major losses, the sentence is to be between three and seven years imprisonment and a fine of not less than 50 percent but not more than two times the amount of sales; and where production suffers especially heavy losses, a sentence of not less than seven years imprisonment or life imprisonment is to be given, and a fine of not less than 50 percent but not more than two times the amount of sales or confiscation of property is to be given.
01
Criteria for filing a case
Article 7 of the Supreme People's Court and Supreme People's Procuratorate's "Interpretation on the Specific Application of Law in Handling Criminal Cases of the Production and Sale of Counterfeit and Shoddy Goods" (effective as of April 10, 2001, Fa Shi [2001] No. 10): Article 147 of the Criminal Law provides that the crime of producing and selling counterfeit and shoddy pesticides, veterinary drugs, fertilizers, and seeds "causing production to suffer relatively large losses" generally starts at 20,000 yuan; "Significant losses" generally start with 100,000 yuan; "Particularly significant losses" generally start at 500,000 yuan.
Article 23 of the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (1):
Where any of the following circumstances are suspected, a case shall be filed for prosecution:
(1) Causing production losses of 20,000 yuan or more;
(2) Other circumstances that cause production to suffer relatively large losses.
02
Composition of the crime
1. The object of this crime is the state's supervision and management system for the quality of agricultural means of production and agricultural production. The state has formulated a series of laws and administrative regulations to strengthen the production and sale of agricultural means of production, and has established a complete supervision and management system. The act of producing and selling fake and shoddy agricultural materials has seriously violated the state's supervision and management system for agricultural means of production, seriously damaged agricultural production, and caused great harm to agriculture, and should be cracked down on by the criminal law.
2. This crime is a consequential crime. Its actions must have the result of causing a significant loss of production. If there are only acts of production or sales without harmful consequences, or if there are harmful consequences, but the loss of production does not reach the level of a relatively large loss, this crime cannot be constituted, but other crimes are not excluded.
3. Why does this crime not provide for the production of fake seeds? The offence for this offence includes the sale of counterfeit or ineffective seeds, but does not cover the act of production. It has been argued that since the provisions of the Criminal Code on this crime do not cover the act of production, the production of false seeds does not constitute a crime in accordance with the principle of legality. It has also been argued that this is an omission in the legislation, and that the production of counterfeit and substandard seeds must constitute this crime as long as the sale of substandard seeds is consistent with the consequences of causing losses. The Criminal Law was fully amended in 1997 to provide for this crime, and it is very likely that it is an omission in the legislation, but even if the act of producing fake seeds is omitted, it does not affect the fact that the act of producing fake seeds constitutes this crime. First of all, the act of producing fake seeds can be evaluated separately. The purpose of criminal law is to protect legal interests, and if there is no consequence of infringement of legal interests, the production of seeds should obviously not be evaluated as a crime if they are not sold for self-propagation and use. The subjective purpose of constituting this crime is obviously to make a profit, and if the production of fake seeds is based on subjective intent, and the consequences of production loss are objectively caused after the sale, then the application of the crime of production and sale of fake and shoddy seeds can include the production of fake seeds for evaluation.
4. The determination of "fake and inferior" in this crime cannot be completely equated with the determination of "fake and inferior" in the "Seed Law", "Regulations on the Administration of Pesticides" and "Regulations on the Administration of Veterinary Drugs". This crime requires that the criminal act be manifested in the sale of fake or ineffective pesticides, veterinary drugs, fertilizers, seeds, and the focus of this crime is the loss of use. It means that pesticides, veterinary drugs, chemical fertilizers, and seeds have lost their beneficial effects and values due to expiration, moisture, deterioration or other reasons, and their use has been unable to produce their due effects. Therefore, the "fake and inferior" constituting this crime cannot be completely equated with the "fake and inferior" in the administrative punishment. In Article 47 of the Veterinary Drug Regulations, there are 5 situations in which fake veterinary drugs are treated, and they are treated as fake veterinary drugs in administrative punishments, but they do not necessarily belong to the "fake" in the scope of adjustment of the Criminal Law in criminal offenses.
Article 49 of the Seed Law stipulates that the following seeds are false seeds: (1) non-seeds are passed off as seeds or seeds of this variety are passed off as seeds of other varieties; (2) The type or variety of seeds does not match the content of the label or there is no label. In administrative punishment, if another variety is passed off or the label of the seed does not conform to the labeling, even if there is no need to make an appraisal of the authenticity of the variety, it can be directly identified as a fake seed based on the seed label or packaging, while the identification of counterfeit and shoddy products in the Criminal Law must use the appraisal report to determine the nature of the product. In order to constitute the offence, a false or ineffective seed, pesticide or veterinary drug requirement must result in a loss of production, and the amount of the damage must be proved by an appraisal. Some of the seeds identified as fake seeds in the administrative punishment may be an infringement of intellectual property rights, and do not necessarily lose the efficiency of use and cause production losses, and if there is no consequence of production losses, it does not constitute this crime, and the crimes constituted by the infringement of intellectual property rights shall be evaluated by other crimes in the criminal law.
5. What is unqualified? The so-called unqualified means that it does not have the efficiency it should have, or it does not meet the quality standards that should be achieved. Defective and inferior products that do not meet product quality standards, although they have a certain use efficiency, they cannot reach the use efficiency of qualified products. This is different from the above-mentioned items, which are fake or ineffective, which are ineffective against the purpose for which they are intended to be prevented or are supposed to be achieved.
6. The subjective elements of this crime. The subjective aspect of this crime is intent, and the perpetrator has the subjective intent to produce and sell counterfeit and shoddy pesticides, veterinary drugs, fertilizers, and seeds, and objectively commits the act. The perpetrator's failure to know-how at the time of sale does not constitute this crime, and only needs to bear civil liability. The purpose of this crime is to make a profit, and causing heavy losses to production is a consequence of this crime, not the purpose of this crime. Regardless of the type of act of production or sale carried out by the perpetrator and the target target, pesticides, veterinary drugs, fertilizers, and seeds can constitute this crime as long as they are intentional and achieve certain harmful results.
03
Determination of this crime
About sin and non-sin. This offence is constituted only if there is a substantial loss of production. If there is no greater loss of production, this crime is not constituted. Where the perpetrator produces or sells counterfeit or shoddy pesticides, veterinary drugs, fertilizers, or seeds, although they have not caused a relatively large loss to production, but the sales amount is 50,000 yuan or more, it shall be convicted and punished in accordance with the crime of producing or selling counterfeit or shoddy products. The crime of producing and selling counterfeit and shoddy products is a monetary offense, and the crime must constitute a sales amount of 50,000 yuan or more, and if the perpetrator constitutes both crimes, it shall be punished in accordance with the provisions of the heavier punishment. If other crimes such as counterfeiting of registered trademarks are constituted at the same time, it shall be convicted and punished in accordance with the provisions of the heavier punishment. The purpose of this crime is to make illegal profits, and if the perpetrator commits the acts provided for in Article 147 of the Criminal Law for the purpose of venting anger and revenge or for other personal purposes, the "other methods" provided for in Article 276 of the Criminal Law may be applied, constituting the crime of sabotaging production and operation.
In accordance with the notice issued by the Supreme People's Court on the "Guiding Opinions on Further Strengthening the Criminal Trial Work Involving Seeds", it is necessary to base the existing crimes on the basis of cracking down on the illegal acts of making and selling counterfeit seeds. "Counterfeit seed variety rights, production without permission or beyond the commissioned scale, breeding of authorized varieties of seeds and other seed infringement acts, often accompanied by counterfeiting of registered trademarks, infringement of trade secrets and other criminal acts. When hearing such cases, it is necessary to grasp this characteristic, based on the existing provisions of the Criminal Law, and to achieve the punishment of infringement of seed licenses in accordance with the law through the application of the crimes of counterfeiting registered trademarks, the crimes of selling goods with counterfeit registered trademarks, the crimes of illegally manufacturing and selling illegally manufactured registered trademark logos, the crimes of infringing on trade secrets, and the crimes of stealing, espionage, buying, and illegally providing trade secrets for overseas countries. ”
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Source: Supreme People's Court
Editors of this issue: Zhai Yiting and Wei Rong
Review of this issue: Wang Meihong
Producer of this issue: Jiang Shanjun
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