(Case source: criminal judgment (20 18), Beijing Dongcheng District People's Court, Beijing 010/)
Beijing Dongcheng District People's Procuratorate accused that at the beginning of 20 16, defendant Zhao Dan developed defendants Guo and Wang 1 (sentenced) to help them engage in sales activities in order to sell "pure Chinese medicine slimming capsules" (hereinafter referred to as capsules), and recommended their micro-signals to the audience in the name of their assistants through the Yingke live broadcast platform. From March 20 16 to June 20 10, the defendant Zhao Dan, together with the defendants Claire Kuo, Wang Mou 1 and her husband Gu Mou (sentenced), were in the dormitory of Liu Laogen Grand Stage, No.34-36 Xiaojiang Hutong, Qianmen East Road, Dongcheng District, Beijing. Bottle the capsule and seal it, make your own instructions, contact the buyer through WeChat and Alipay, and contact SF Express to mail the goods to buyers in many provinces and cities across the country. Among them, the selling amount of Zhao Dan, Wang 1 and Gu * * is about1.2000 yuan, and the selling amount of Claire Kuan is1.8900 yuan. The US Food and Drug Administration in Dongcheng District of Beijing said that the "pure Chinese medicine slimming capsules" involved in the case should be treated as counterfeit drugs according to law.
court decision
1. Defendant Zhao Dan was convicted of producing and selling counterfeit drugs, sentenced to three years' imprisonment and fined 500,000 yuan.
2. The defendant Claire Kuo was convicted of producing and selling counterfeit drugs, sentenced to one year's imprisonment and fined RMB100000.
Three, continue to recover the defendant Zhao Dan illegal income of one hundred thousand yuan, the defendant kaiser kuo illegal income of four thousand yuan, shall be confiscated.
Four, seized items that are not transferred with the case shall be handled by the seizure organ according to law.
Lawyer's view
First, the production of counterfeit drugs is manifested in all activities of manufacturing, processing, collecting and collecting counterfeit drugs.
Defendant Guo Jing's behavior of bottling, sealing and making instructions for slimming capsules should belong to the "production" behavior in this crime and constitute this crime.
Second, the act of selling counterfeit drugs refers to all acts of providing counterfeit drugs with compensation.
Defendant Zhao Dan actively publicized and promoted the counterfeit drugs produced and sold by Wang 1 and Claire Kuo, which was the * * * guilty of the crime of producing and selling counterfeit drugs, so it also constituted this crime.
Case focus
1. What is the "counterfeit drug" in the crime of producing and selling counterfeit drugs?
The second paragraph of Article 141 of China's Criminal Law stipulates: "Fake drugs mentioned in this article refer to drugs and non-drugs that belong to fake drugs and are treated as fake drugs according to the provisions of the Drug Administration Law of People's Republic of China (PRC)."
Article 48 of the Drug Administration Law of People's Republic of China (PRC) stipulates the categories of "counterfeit drugs":
In any of the following circumstances, it is a counterfeit drug:
(a) the ingredients contained in the drug are inconsistent with the provisions of the national drug standards;
(2) passing off non-drugs as drugs or passing off other drugs as drugs.
Drugs under any of the following circumstances shall be treated as counterfeit drugs:
(a) prohibited by the drug supervision and administration department of the State Council;
(2) Producing, importing or selling without the approval of this Law;
(3) deterioration;
(4) being polluted;
(five) the use of raw materials that must obtain the approval number in accordance with this law, but have not obtained the approval number;
(six) the indications or functional indications are beyond the prescribed scope.
2. What behaviors constitute the crime of producing and selling counterfeit drugs?
The production of counterfeit drugs shows all activities of manufacturing, processing, collecting and confiscating counterfeit drugs, and the sale of counterfeit drugs refers to all acts of providing counterfeit drugs with compensation. Producing and selling counterfeit drugs are two kinds of behaviors, which can be implemented separately or simultaneously, and there are two kinds of behaviors at the same time. According to the objective behavior of this crime stipulated by law, as long as one of the behaviors is possessed, it meets the objective requirements of this crime. If the perpetrator has the above two acts at the same time, it is still considered as the crime of producing and selling counterfeit drugs, and the combined punishment for several crimes is not implemented. The production and sale of counterfeit drugs is enough to seriously endanger human health, which is in line with the legal result of the establishment of this crime, indicating that this crime belongs to a dangerous crime in criminal form. However, the production and sale of counterfeit drugs, causing serious harm to human health, is an aggravated crime, a heavier punishment.
3. What are the penalties for the crime of producing and selling counterfeit drugs?
China Criminal Law Amendment (VIII) XXIII;
The first paragraph of Article 141 of the Criminal Law is amended as: "Whoever produces or sells counterfeit drugs shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; Whoever causes serious harm to human health or has other serious circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and fined; Whoever causes death or has other particularly serious circumstances shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death, and shall also be fined or confiscated. "
According to the provisions of Article 150 of the Criminal Law, if a unit commits the crime of producing or selling counterfeit drugs, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished according to the statutory punishment for the crime of producing and selling counterfeit drugs.
What are "seriously endangering human health", "other serious circumstances" and "other particularly serious circumstances"?
1, "causing serious harm to human health"
Article 2 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases Endangering Drug Safety (Fa Shi [2065 438+04] 14) (hereinafter referred to as the Interpretation):
The production and sale of counterfeit drugs, in any of the following circumstances, shall be deemed as "causing serious harm to human health" as stipulated in Article 141 of the Criminal Law:
(a) Causing minor or serious injuries;
(2) Causing mild or moderate disability;
(three) causing damage to organs and tissues, resulting in general dysfunction or serious dysfunction;
(4) Other circumstances that cause serious harm to human health.
2. "Other serious circumstances"
Article 3 of the Interpretation:
The production and sale of counterfeit drugs, in any of the following circumstances, shall be deemed as "other serious circumstances" as stipulated in Article 141st of the Criminal Law:
(1) Causing major public health emergencies;
(2) The production and sales amount is more than 200,000 yuan but less than 500,000 yuan;
(3) The production and sales amount100,000 yuan but less than 200,000 yuan, and it falls under any of the circumstances specified in Article 1 of this Interpretation;
(four) according to the time, quantity and type of the production and sale of counterfeit drugs. , should be serious.
3. "Other particularly serious circumstances"
Article 4 of the Interpretation:
The production and sale of counterfeit drugs under any of the following circumstances shall be deemed as "other particularly serious circumstances" as stipulated in Article 141 of the Criminal Law:
(1) Causing serious disability;
(2) Causing serious injury, moderate disability or organ and tissue damage to more than three people, resulting in serious dysfunction;
(three) causing mild disability of more than five people or organ and tissue damage leading to general dysfunction;
(four) causing minor injuries to more than ten people;
(5) Causing major, especially major public health emergencies;
(six) the production and sales amount is more than five hundred thousand yuan;
(seven) the production and sales amount is more than 200 thousand yuan but less than 500 thousand yuan, and it has one of the circumstances stipulated in Article 1 of this interpretation;
(eight) according to the time, quantity and type of the production and sale of counterfeit drugs. , should be identified as particularly serious.