1. Provisions of the Criminal Law
Article 140 of the Criminal Law stipulates that if a producer or seller adulterates or adulterates a product, pretends to be genuine, or uses shoddy or unqualified products to pass off as qualified products, and the sales amount is between 50,000 yuan and less than 200,000 yuan, he shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention, and shall also, or shall alone, be fined not less than 50 percent but not more than two times the sales amount;
Whoever sells a sales amount of 200,000 yuan but less than 500,000 yuan shall be sentenced to fixed-term imprisonment of not less than two years but not more than seven years, and shall also be fined not less than 50 percent but not more than two times the sales amount;
Whoever sells more than 500,000 yuan but less than 2 million yuan shall be sentenced to fixed-term imprisonment of not less than seven years and shall also be fined not less than 50 percent but not more than two times the sales amount;
Whoever sells an amount of more than 2 million yuan shall be sentenced to 15 years' fixed-term imprisonment or life imprisonment, and shall also be fined not less than 50 percent but not more than 2 times the sales amount or confiscation of property.
2. Composition of the crime
Subjective aspect: The subjective aspect of this crime is in the form of intentionality, and the specific content of its intention is that the perpetrator knows that the production and sale of counterfeit and shoddy products will endanger the national product quality management system, the legitimate consumer rights and interests of consumers, and the order of product market management, and hopes that this or allows the results to occur.
Objective aspect: The objective aspect of this crime is manifested as the producer and seller violating the state's product quality management laws and regulations and producing and selling fake and shoddy products, specifically:
1. Adulteration and adulteration. Refers to the incorporation of impurities or foreign matter in the product, resulting in product quality does not meet the quality requirements stipulated by national laws, regulations or product explicit quality standards, and reduces or loses the performance it should have;
2. Fill the truth with falsehood. refers to the act of passing off a product with a certain performance of use as a product with such performance;
3, shoddy charging. Refers to the act of passing off a low-grade or low-grade product as a high-grade or high-grade product, or passing off as a genuine or new product after combining or assembling residual or scrap spare parts;
4. Pass off unqualified products as qualified products. Unqualified products refer to products that do not meet the quality requirements stipulated in the Product Quality Law of the People's Republic of China.
Subject: The subject of this crime is the general subject, including individuals and units, and is manifested as two types of people: producers and sellers of products. The producer is the manufacturer of the product (including the processor of the product), and the seller is the seller of the product in bulk or scattered through the seller (including the direct seller of the product). Whether the producer or seller has a legal production license or business license does not affect the establishment of this crime.
Object: The legal interest infringed by this crime is the state's management system for the quality of ordinary products. Ordinary products refer to products other than products (such as drugs, food, etc.) otherwise provided for in the Criminal Law, and the production and sale of counterfeit and shoddy products that do not meet product quality standards disrupt the order of product quality supervision and management, and infringe upon the legitimate rights and interests of consumers.
III. Criteria for filing and prosecuting cases
Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecuting Criminal Cases Under the Jurisdiction of Public Security Organs (I):
Article 16 Where producers or sellers adulterate or adulterate products, use false products to become genuine, use shoddy products to pass off as qualified products, and are suspected of any of the following circumstances, they shall be prosecuted by filing a case:
(1) The sales amount of counterfeit and shoddy products is more than 50,000 yuan;
(2) Counterfeit and shoddy products have not yet been sold, and the value of the goods is more than 150,000 yuan;
(3) The sales amount of counterfeit and shoddy products is less than 50,000 yuan, but after multiplying the sales amount by three times, the total value of the counterfeit and shoddy products that have not yet been sold is more than 150,000 yuan.
Where it is difficult to determine the conduct provided for in this article, the product quality inspection institution provided for by laws and administrative regulations shall be retained to conduct an appraisal.
The "sales amount" provided for in this article refers to all illegal income obtained and due to producers and sellers after selling counterfeit and shoddy products;
The "value of the goods" is calculated based on the list price of counterfeit and shoddy products produced or sold in violation of the law; if there is no price list, it is calculated according to the market intermediate price of similar qualified products. Where it is difficult to determine the value of goods, in accordance with the provisions of the Measures for the Administration of the Valuation of Seized, Recovered and Confiscated Articles, the valuation agency shall be entrusted to determine it.
4. Case interpretation
Between February 2012 and April 2013, defendants Wu X 1 and Wu X 2 and Wu X 3 (handled in a separate case) purchased raw materials, packaging and other items in a leased house in a village in Huiji District, Zhengzhou City, without obtaining a license to produce veterinary drugs, produced and sold fake veterinary drugs in the name of a pharmaceutical company, and sold the fake veterinary drugs to all parts of the country through the way of delivery by logistics companies, and the amount of production and sales of fake veterinary drugs was 400481 yuan. At the time of the incident, the public security organs seized the finished fake veterinary drugs and raw materials used in the production of fake veterinary drugs, mixers, marking machines, electronic scales, sealing machines, labels, packaging bags, cartons, and cartons from the factories of Wu X1, Wu X 2 and others. On May 16, 2013, the Henan Provincial Veterinary Drug Supervision Institute inspected the soluble powder of the veterinary drug ofloxacin produced and sold by Wu Mou1, Wu Mou2 and others, and the test results did not meet the regulations. On September 25, 2013, the Henan Animal Husbandry Bureau issued a reply letter to assist in the implementation of "a pharmaceutical company", showing that the veterinary drug products produced by defendants Wu X 1 and Wu X 2 should be treated as fake veterinary drugs.
The People's Court of Jinshui District of Zhengzhou City convicted defendant Wu X 1 of the crime of producing and selling counterfeit and shoddy products and sentenced him to five years and seven months imprisonment and a fine of RMB 250,000; defendant Wu X 2 was convicted of producing and selling counterfeit and shoddy products and sentenced him to five years and seven months imprisonment and fined 250,000 yuan; the finished fake veterinary drugs seized and the raw materials used in the production of fake veterinary drugs, mixers, marking machines, electronic scales, sealing machines, labels, packaging bags, cartons, and cartons were seized. (In the Dongfeng Road Branch of the Zhengzhou Municipal Public Security Bureau) was confiscated.
Interpretation: According to the Provisions of the Criminal Law, there are four forms of production of counterfeit and inferior products, that is, adulteration in products, false as true, shoddy products as good, and unqualified products as qualified products. In this case, Wu X 1 and Wu X 2 produced and sold counterfeit drugs in the name of a counterfeit drug company without obtaining a license to produce veterinary drugs, and sold them to all parts of the country by means of logistics delivery, with a sales amount of 400481 yuan, which belonged to the act of passing off unqualified products as qualified products as stipulated in the Criminal Law.
V. Lawyer analysis
The crime of producing and selling fake and shoddy products is a frequent and easy-to-occur crime, which not only violates the state's management system for product quality and infringes on the legitimate rights and interests of consumers, but also causes huge damage to the enterprises that produce and sell fake and shoddy products, on the one hand, the reputation of the enterprise is damaged, on the one hand, the responsible persons of the enterprises and the responsible persons are also facing the disaster of imprisonment. In order to safeguard the reputation of enterprises and reduce the criminal risks of companies, it is very necessary to establish a mechanism to prevent the crime of producing and selling counterfeit and shoddy products, and the following points can be referred to:
(1) Company managers shall enhance their legal awareness. In order to improve profits, some operation managers of production and sales enterprises purchase and produce raw materials or fake and shoddy products at low prices, and produce and sell products that do not meet national standards. In this regard, enterprise management personnel should set up a legal red line to improve their legal awareness and moral awareness, and avoid violating the law for profit.
(2) Enterprises should strictly control product quality in the production process to ensure that products meet standards. Enterprises should formulate and improve the product quality supervision and management system applicable to the enterprise itself in accordance with laws and regulations, so that the system can be implemented in every link of production; in addition, a quality inspection department should be set up to be responsible for the inspection and evaluation of product quality and strengthen product quality supervision.
(3) Organize staff training. Products are ultimately produced by front-line employees, strengthen the training of responsible production personnel, improve the level of production technology, improve product quality awareness, and provide manpower guarantee for enterprises to produce and sell qualified products.
(4) Establish early warning mechanisms. Each link of production and circulation should formulate a response plan, and after discovering unqualified products, they should be dealt with and corrected in time to prevent problems from fermenting and causing greater losses.
(5) Entrust professionals with guidance. For enterprises, once involved in the punishment, they will face a fatal blow. Therefore, it is very necessary to entrust lawyers to go deep into enterprises to identify and prevent criminal risks.
For incomplete matters, please contact Mr. Zhang Bo.