Judicial interpretation of the crime of producing and selling fake and inferior products

Article 1 of the Interpretation "Product doping and adulteration" as stipulated in Article 140 of the Criminal Law refers to the act of doping impurities or foreign bodies in a product, which causes the quality of the product to fail to meet the quality requirements stipulated by national laws, regulations or product express quality standards, and reduces or loses its due performance.

Article 140 of the Criminal Law stipulates that "confusing the real with the fake" refers to the act of passing off a product with certain performance as a product with that performance.

The term "shoddy" as stipulated in Article 140 of the Criminal Law refers to the act of passing off low-grade products as high-grade products, or passing off defective and used parts as genuine products or assembled new products.

"Unqualified products" as stipulated in Article 140 of the Criminal Law refers to products that do not meet the quality requirements stipulated in the second paragraph of Article 26 of the Product Quality Law of People's Republic of China (PRC).

If it is difficult to identify the above-mentioned acts as stipulated in this article, it shall entrust a product quality inspection institution as stipulated by laws and administrative regulations for identification.

Article 2 The term "sales amount" as mentioned in Articles 140 and 149 of the Criminal Law refers to all illegal income obtained by producers and sellers after selling fake and inferior products.

If the fake and inferior products have not been sold, and the value of the goods reaches more than three times the sales amount stipulated in Article 140 of the Criminal Law, they shall be convicted and punished for the crime of producing and selling fake and inferior products (attempted).

Calculate the value of the goods at the marked price of the illegally produced and sold fake and inferior products; If the price is not indicated, it shall be calculated according to the intermediate market price of similar qualified products. If it is difficult to determine the value of the goods, it shall entrust a designated appraisal institution for appraisal in accordance with the provisions of the Administrative Measures for the Appraisal of Seizure, Recovery and Confiscation of Goods 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 22nd.

Repeated production and sale of fake and shoddy products, untreated, the sales amount or value of fake and shoddy products is calculated cumulatively.

Article 141 The crime of producing and selling counterfeit drugs. Whoever produces and sells counterfeit drugs, which is enough to seriously endanger human health, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined not less than 50% but not more than 2 times the sales amount; Whoever causes serious harm to human health shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall be fined not less than 50% but not more than two times the sales amount; Whoever causes death or especially serious harm to human health shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death, and shall also be fined not less than 50% but not more than 2 times the sales amount or confiscated property.

The term "counterfeit drugs" as mentioned in this article refers to drugs and non-drugs that belong to counterfeit drugs and are treated as counterfeit drugs according to the provisions of the Drug Administration Law of People's Republic of China (PRC).

The Drug Administration Law of People's Republic of China (PRC) (adopted at the 7th meeting of the Fifth National People's Congress Standing Committee on September 20th, 2006, 1984, revised at the 20th meeting of the Ninth National People's Congress Standing Committee on February 28th, 2006, and implemented on February 28th, 2006.

Article 48 The production (including preparation, the same below) and sale of counterfeit drugs are prohibited.

In any of the following circumstances, it is a counterfeit drug: the ingredients contained in the drug do not conform to the ingredients stipulated by the national drug standards; Passing off non-drugs as drugs or passing off other drugs as drugs. Drugs under any of the following circumstances; Be punished as counterfeit drugs; The drug supervision and administration department of the State Council prohibits the use of: production and import that must be approved according to this law without approval, or sales that must be inspected without inspection according to this law; Deteriorated; Be polluted; Using raw materials that must obtain the approval number according to this law but have not obtained the approval number; Indications or functional indications are beyond the prescribed scope. Article 3 of the Interpretation: If the counterfeit drugs produced and sold are identified by the drug inspection agency set up or recognized by the drug supervision and administration department at or above the provincial level in any of the following circumstances, it shall be deemed as "enough to seriously endanger human health" as stipulated in Article 141 of the Criminal Law: it does not contain the marked effective ingredients and may delay the diagnosis and treatment; Indications or functional indications are beyond the prescribed scope, which may lead to delayed diagnosis and treatment; Lack of obvious and effective ingredients necessary for first aid. The use of counterfeit drugs produced and sold, causing minor injuries, serious injuries or other serious consequences, shall be deemed as "causing serious harm to human health".

If the use of fake drugs produced and sold causes serious disability, three or more serious injuries, ten or more minor injuries or other particularly serious consequences, it shall be deemed as "particularly serious harm to human health".

Article 142 Whoever commits the crime of producing and selling inferior drugs and causes serious harm to human health shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined not less than 50% but not more than two times the sales amount; If the consequences are especially serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than 50% but not more than 2 times the sales amount or his property shall be confiscated.

The term "inferior drugs" as mentioned in this article refers to drugs that are inferior drugs according to the provisions of the Drug Administration Law of People's Republic of China (PRC).

People's Republic of China (PRC) Drug Administration Law

Article 49 The production and sale of inferior drugs are prohibited.

If the content of drug ingredients does not meet the national drug standards, it is inferior.

Drugs under any of the following circumstances shall be punished as inferior drugs: the expiration date is not marked or changed; Failing to indicate or change the production batch number; Exceeding the validity period; The packaging materials and containers that are in direct contact with drugs are not approved; Adding colorants, preservatives, spices, correctants and auxiliary materials without authorization; Others do not meet the requirements of drug standards. Article 143 The crime of producing and selling food that does not meet the hygiene standards. Whoever produces and sells food that does not meet the hygiene standards, enough to cause serious food poisoning accidents or other serious food-borne diseases, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined not less than 50% but not more than 200% of the sales amount; Whoever causes serious harm to human health shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined not less than 50% but not more than two times the sales amount; If the consequences are especially serious, he shall be sentenced to fixed-term imprisonment of not less than seven years or life imprisonment, and shall also be fined not less than 50% but not more than two times the sales amount or his property shall be confiscated.

Article 4 of the Interpretation stipulates that if food contains harmful bacteria or other pollutants exceeding the standard, which may cause serious food poisoning accidents or other serious food-borne diseases, it shall be deemed as "enough to cause serious food poisoning accidents or other serious food-borne diseases" as stipulated in Article 143 of the Criminal Law.

Eating food that does not meet the hygiene standards produced and sold, causing minor injuries, serious injuries or other serious consequences, shall be deemed as "causing serious harm to human health".

Eating food produced and sold that does not meet the hygiene standards, resulting in death, serious injury to more than three people, minor injury to more than ten people or other particularly serious consequences. It should be considered as "the consequences are particularly serious."

Article 144 Whoever produces or sells toxic or harmful food, adulterates it with toxic or harmful non-food raw materials, or sells food that is knowingly adulterated with toxic or harmful non-food raw materials, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also, or shall only, be fined not less than 50% but not more than two times the sales amount; Whoever causes serious food poisoning accidents or other serious food-borne diseases and causes serious harm to human health shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than 50% but not more than two times the sales amount; Whoever causes death or especially serious harm to human health shall be punished in accordance with the provisions of Article 141 of this Law.

Article 5 of the Interpretation: If eating poisonous and harmful food produced and sold causes minor injuries, serious injuries or other serious consequences, it shall be deemed as "causing serious harm to human health" as stipulated in Article 144 of the Criminal Law.

Toxic and harmful food produced and sold, which causes serious disability, three or more serious injuries, ten or more minor injuries or other particularly serious consequences after eating, shall be deemed as "particularly serious harm to human health".

Article 145 Crime of producing and selling substandard medical devices Whoever produces or sells medical devices or medical and health materials that do not meet the national standards or trade standards for protecting human health, knowing that they do not meet the national standards or trade standards for protecting human health, is enough to seriously endanger human health, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined not less than 50% but not more than two times the sales amount; Those who cause serious harm to human health shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall be fined not less than 50% but not more than two times the sales amount; If the consequences are especially serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment, and shall also be fined not less than 50% but not more than 2 times the sales amount or his property shall be confiscated.

Article 6 of the Interpretation: If the production and sale of unqualified medical devices and medical materials cause minor injuries or other serious consequences, it shall be deemed as "causing serious harm to human health" as stipulated in Article 145 of the Criminal Law.

The production and sale of unqualified medical devices and medical and health materials, causing incurable diseases such as viral hepatitis, seriously injuring more than one person, slightly injuring more than three people or other serious consequences, shall be deemed as "especially serious consequences".

If the production and sale of unqualified medical devices and medical and health materials cause death, serious disability, AIDS infection, serious injuries to more than three people, minor injuries to more than ten people or other particularly serious consequences, it shall be deemed as "the circumstances are particularly bad".

If a medical institution or individual knows or should know that it is a medical device or medical and health material that does not meet the national standards or industry standards for protecting human health, causing serious harm to human health, he shall be convicted and punished for selling medical devices that do not meet the standards.

There is no national standard or industry standard for medical devices, and the registered product standard can be regarded as "industry standard for protecting human health".

Article 146 The crime of producing and selling products that do not meet the safety standards is to produce electrical appliances, pressure vessels, inflammable and explosive products or other products that do not meet the national standards and industrial standards for protecting personal and property safety, or to sell products that knowingly do not meet the national standards and industrial standards for protecting personal and property safety, thus causing serious consequences, and shall be sentenced to fixed-term imprisonment of not more than five years and fined not less than 50% but not more than two times the sales amount. If the consequences are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years and fined not less than 50% but not more than two times the sales amount.

Article 147 The crime of producing and selling fake and inferior pesticides, veterinary drugs, fertilizers and seeds is to produce fake pesticides, fake veterinary drugs and fake fertilizers, sell pesticides, veterinary drugs, fertilizers and seeds that are known to be fake or lose their use efficiency, or the producers and sellers pass off unqualified pesticides, veterinary drugs, fertilizers and seeds as qualified pesticides, veterinary drugs, fertilizers and seeds, thus causing heavy losses in production, and shall be sentenced to fixed-term imprisonment of not more than three years or cause serious losses. Whoever causes particularly heavy losses in production shall be sentenced to fixed-term imprisonment of not less than seven years or life imprisonment, and shall also be fined not less than 50% but not more than two times the sales amount or confiscated property.

Article 7 of the Interpretation The starting point of the crime of producing and selling fake and inferior pesticides, veterinary drugs, fertilizers and seeds stipulated in Article 147 of the Criminal Law is generally 20,000 yuan; "Major losses" generally start with 654.38+10,000 yuan; "Extraordinary heavy losses" generally start from 500,000 yuan.

Article 148 Whoever produces or sells cosmetics that do not meet hygiene standards, or knowingly sells cosmetics that do not meet hygiene standards, thus causing serious consequences, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined not less than 50% but not more than 200% of the sales amount.

Article 149 The production and sale of the products listed in Articles 141 to 148 of this section does not constitute the crimes specified in these articles, but those whose sales amount is more than 50,000 yuan shall be convicted and punished in accordance with the provisions of Article 140 of this section.

Whoever produces or sells the products listed in Articles 141 to 148 of this section not only constitutes a crime as stipulated in each article, but also constitutes a crime as stipulated in Article 140 of this section, shall be convicted and punished in accordance with the provisions of heavier punishment.

Article 150 Where a unit commits the crimes specified in Articles 140 to 148 of this section, it shall be fined, and the persons who are directly in charge and other persons who are directly responsible shall be punished according to the provisions of these Articles.

Article 414 Any functionary of a state organ who is responsible for the crime of producing and selling fake and inferior commodities, engages in malpractices for personal gain and fails to perform the investigation duties prescribed by law, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention.

Article 8 of the Interpretation: A functionary of a state organ engages in malpractices for personal gain, fails to perform the duty of investigating and dealing with the crime of producing and selling fake and inferior commodities as stipulated by law, and falls into the category of "serious circumstances" as stipulated in Article 414 of the Criminal Law: indulging in the production and sale of counterfeit drugs, being poisonous and harmful food; The criminal act of indulging in the production and sale of fake and inferior commodities may be sentenced to fixed-term imprisonment of more than two years according to law; Failing to perform the duties of investigating and handling more than three criminal units or individuals that produce and sell fake and inferior commodities; Causing great losses or adverse effects to the interests of the state and the people. The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Producing and Selling Fake and Inferior Commodities [200 1]No. 10 was adopted by the the Supreme People's Court Judicial Committee at its168th meeting on April 5, 2000/kloc-0.

200 1 apr. 9, 2008

In order to punish the criminal activities of producing and selling fake and inferior commodities according to law, according to the relevant provisions of the Criminal Law, some issues concerning the specific application of law in handling such cases are explained as follows:

Article 9 Whoever knowingly or should have known that others committed the crime of producing and selling fake and inferior commodities, provided them with loans, funds, account numbers, invoices, certificates and licenses, or provided them with production and business premises or convenient conditions such as transportation, warehousing, storage and mailing, or provided counterfeit technology, shall be punished as the crime of producing and selling fake and inferior commodities.

Article 10 Whoever commits the crime of producing and selling fake and inferior commodities, and at the same time constitutes other crimes such as infringement of intellectual property rights and illegal business operations, shall be convicted and punished in accordance with the provisions of heavier punishment.

Article 11 Whoever commits the crimes specified in Articles 140 to 148 of the Criminal Law and refuses to investigate and deal with them by violence or threats, which constitutes other crimes, shall be punished in accordance with the provisions of combined punishment for several crimes.

Article 12 Any functionary of a state organ who participates in the crime of producing or selling fake and inferior commodities shall be given a heavier punishment.

Opinions of Shaanxi Higher People's Court on the amount and plot standard of relevant provisions of Criminal Law (for Trial Implementation) ※

(Adopted at the 23rd Meeting of the Judicial Committee of Shaanxi Higher People's Court on 22 October 2002 165438)

Chapter III Crimes of Disrupting the Order of the Socialist Market Economy

Section 1 Crime of Producing and Selling Fake and Inferior Commodities

Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Producing and Selling Fake and Inferior Commodities, which came into effect on April 1 2006.

Release Department: the Supreme People's Court Release Date: June 2, 20041Implementation Date: June 2, 20041.

Notice of the Supreme People's Court on Punishing the Crime of Producing and Selling Fake and Inferior Food and Drugs Seriously Disturbing the Order of Market Economy ※

(No.[2004] 1 18)

Higher People's Courts of all provinces, autonomous regions and municipalities directly under the Central Government, Military Courts of the People's Liberation Army, and Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region:

Since the rectification and standardization of the market economic order in China, people's courts at all levels have given full play to their judicial functions, promptly punished a large number of criminals who seriously undermined the market economic order, safeguarded the socialist market economic order, safeguarded the legitimate rights and interests of citizens, legal persons and other organizations, and provided a strong judicial guarantee for rectifying and standardizing the market economic order. Not long ago, the second meeting of the national leading group for rectifying and standardizing the market economic order demanded that the rectification work should be further intensified, and the outstanding problems related to people's health, life safety and vital interests should be firmly grasped, with the focus on carrying out special rectification of food hygiene, cracking down on "blood tyrants" and illegal blood collection and supply, and strengthening intellectual property protection, so as to solidly promote the rectification and standardization of the market economic order this year. On May 13, the State Council held a national video conference on food safety special rectification, and deployed to carry out food safety rectification work in depth throughout the country. It is an important trial work of the people's court at present to try criminal cases of producing and selling fake and inferior food and drugs in time and punish criminals who seriously undermine the market economic order according to law. To this end, we hereby notify you as follows:

First, raise awareness and do a good job in the trial of criminal cases that undermine the order of the market economy, such as the production and sale of fake and inferior food and drugs.

All kinds of crimes that undermine the order of the socialist market economy not only directly affect the healthy operation of the national economy, but also seriously harm the vital interests of the people. Since the beginning of this year, the infant deaths caused by inferior milk powder in Fuyang City, Anhui Province and the deaths caused by poisoned wine in Guangzhou City, Guangdong Province have repeatedly reminded us that rectifying and standardizing the market economic order is a long-term and arduous task, and we must pay close attention to it and make unremitting efforts in the spirit of being highly responsible to the people. People's courts at all levels should fully understand the importance, necessity, urgency and long-term nature of rectifying and standardizing the market economic order from the perspective of practicing Theory of Three Represents and implementing the requirements of justice for the people, regard the timely trial of criminal cases that undermine the socialist market economic order as a regular and important task, earnestly strengthen leadership and arrange effective trial forces to ensure that criminal cases such as the production and sale of fake and inferior food and drugs submitted to the court for trial are concluded in time according to law, effectively combat the arrogance of criminals and ensure the smooth development of special rectification work such as food safety.

Second, highlight key points and punish criminals who seriously undermine the order of the socialist market economy according to law.

Courts at all levels should unswervingly implement the principle of severe punishment according to law and convict and sentence criminals who seriously undermine the order of the socialist market economy in strict accordance with the provisions of the criminal law. At present, we should focus on cracking down on the production and sale of toxic and harmful food and food crimes that do not meet the hygiene standards; Crime of producing and selling counterfeit drugs, inferior drugs and medical devices that do not meet hygiene standards; Crime of producing and selling fake and inferior pesticides, veterinary drugs, fertilizers and seeds; Crime of producing and selling products that do not meet safety standards and other fake and inferior products; Crime of forced blood selling, crime of illegally organizing blood selling and crime of illegally collecting, producing and supplying blood and blood products; Crimes of infringing intellectual property rights such as counterfeiting registered trademarks, selling infringing copies, forging or manufacturing registered trademarks of others without authorization. We will continue to severely punish criminals who seriously undermine the order of the market economy, such as smuggling, tax evasion, tax refusal, tax fraud, contract fraud, financial fraud, illegal pyramid schemes and disguised pyramid schemes. Local courts should determine the focus of the attack according to the actual situation and pay attention to actual results. It is necessary to treat cases with huge amount of crimes, vile circumstances, serious harm and strong reaction from the masses, which have caused great losses to the interests of the state and the people, especially those involving or conniving by state functionaries, as major cases, and promptly try them and severely punish them according to law. If severe punishment should be imposed according to law, it should be resolutely sentenced. While applying the principal punishment according to law, we must fully apply the property punishment. If the law provides for a fine or confiscation of property, it shall be resolutely implemented; If the law stipulates that a fine or confiscation of property can be imposed concurrently, it is generally necessary to impose a fine or confiscation of property. The property illegally obtained by criminals shall be recovered according to law or ordered to make restitution; Personal property used for crimes shall be confiscated according to law.

Third, properly handle cases with many victims according to law.

For cases with a large number of victims, we should pay attention to handling affairs in strict accordance with the law and handle them properly and carefully during the trial; Do a good job in mass work to ensure social stability. If the victim directly brings a lawsuit to the people's court on a criminal case suspected of producing and selling fake and inferior commodities and infringing intellectual property rights, the people's court shall file a case and try it according to law; Serious harm to social order and national interests, or a large number of victims, should rely on local party committees, timely coordinate with relevant departments, and deal with them according to law through trial procedures of public prosecution cases. Attention should be paid to the trial of criminal incidental civil action. Pay attention to recover the losses of victims and injured units to the maximum extent according to law. If the defendant or the defendant unit actively compensates the victim or the injured unit for losses, it may be given a lighter punishment as appropriate.

Fourth, actively participate in the comprehensive management of the market economic order through trial activities.

Rectifying and standardizing the market economic order is a comprehensive systematic project, which should not only cure the symptoms, but also cure the root cause. The trial activities of the people's courts can play an important role in treating both the symptoms and the root causes. Courts at all levels should conscientiously do a good job in the trial of criminal cases that undermine the market economic order, and expand the social effect of trials through public trials, public judgments, on-site trials and other forms; While handling the case, pay attention to finding loopholes and hidden dangers in the market management system and links, put forward judicial suggestions in time, remind and urge relevant departments and units to improve the system, strengthen management and prevent crimes; We should pay attention to the selection of typical cases with educational significance for public sentencing in the place where the case occurred, widely publicize the law through the news media, educate the masses, and improve the awareness and ability of all citizens to use the law to protect and safeguard their legitimate rights and interests. It is necessary to pay attention to legal publicity through trial activities, enhance the people's awareness of the rule of law and integrity, and form a socialist business ethics that is consciously law-abiding, honest and trustworthy in the whole society.

In recent years, the Supreme Court has instructed courts at all levels to hear cases related to rectifying and standardizing the market economic order, and at the same time, selected typical cases and announced them to the public regularly through the news media, which has achieved good social effects. The higher courts should further strengthen the guidance on the cases under their jurisdiction, determine liaison persons in strict accordance with the requirements of the relevant notice of the Supreme People's Court, strengthen information communication, keep abreast of the trial progress, and submit the trial information in time. Once the cases supervised by the Supreme Court and other cases with great influence appear in court, they should report the acceptance to the Supreme Court in time. For cases identified by the Supreme Court as propaganda reports, the relevant courts should actively cooperate with the Supreme Court to do a good job in supervising major cases, and announce the verdict through the central news media.

Please follow the above notice carefully.

June 2, 20041day