Article 225 Whoever, in violation of State regulations, commits one of the following illegal business operations and disrupts the market order, if the circumstances are serious, 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 one time but not more than five times the illegal income; If the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than five years, and shall also be fined not less than one time but not more than five times his illegal income or his property shall be confiscated: (1) dealing in franchise, monopoly goods or other commodities whose business is restricted by laws and administrative regulations without permission; "。 (2) buying and selling import and export licenses, import and export certificates of origin and other business licenses or approval documents stipulated by laws and administrative regulations; (3) Other illegal business operations that seriously disrupt the market order. 2. If a unit commits this crime, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be investigated for criminal responsibility in accordance with the provisions of this article.
Provisions of the Ministry of Public Security of the Supreme People's Procuratorate on the standards for filing and prosecuting criminal cases under the jurisdiction of public security organs (II)
(2) Violating the national laws and regulations on tobacco monopoly administration, illegally dealing in tobacco monopoly products without the permission of the tobacco monopoly administrative department, without the license of tobacco monopoly production enterprise, tobacco monopoly wholesale enterprise, tobacco monopoly franchise enterprise and tobacco monopoly retail license, under any of the following circumstances: 1. The illegal business amount is more than 50,000 yuan, or the illegal income is more than 20,000 yuan; 2. Illegally handling more than 200,000 cigarettes;
3. Having been punished twice or more for illegally operating tobacco monopoly products within three years, and the amount of illegally operating tobacco monopoly products is more than 30,000 yuan.
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 Illegal Production and Sale of Tobacco Monopoly Products (effective as of March 26th, 20 10) In order to maintain the order of socialist market economy and punish crimes such as illegal production and sale of tobacco monopoly products according to the relevant provisions of the Criminal Law, Some issues concerning the specific application of law in handling such criminal cases are explained as follows: Article 1 Whoever produces and sells fake and inferior cigarettes, cigars and other tobacco monopoly products with a sales amount of more than 50,000 yuan shall be convicted and punished for the crime of producing and selling fake and inferior products in accordance with the provisions of Article 140 of the Criminal Law. Without the permission of the registered trademark owner of tobacco monopoly products such as cigarettes and cigars, if the circumstances are serious, he shall be convicted and punished for the crime of counterfeiting registered trademarks in accordance with the provisions of Article 213 of the Criminal Law. Whoever knowingly sells cigarettes, cigars and other tobacco monopoly commodities with counterfeit registered trademarks of others, and the sales amount is relatively large, shall be convicted and punished for the crime of selling commodities with counterfeit registered trademarks in accordance with the provisions of Article 214 of the Criminal Law. Whoever forges or makes without authorization the registered trademark marks of other people's cigarettes and cigars or sells the forged or made without authorization, if the circumstances are serious, shall be convicted and punished for the crime of illegally manufacturing or selling the illegally manufactured registered trademark marks in accordance with the provisions of Article 215 of the Criminal Law. Whoever, in violation of the state regulations on tobacco monopoly administration, illegally deals in tobacco monopoly products without the permission of the tobacco monopoly administrative department, without obtaining the license of tobacco monopoly production enterprise, tobacco monopoly wholesale enterprise, tobacco monopoly franchise enterprise and tobacco monopoly retail license, if the circumstances are serious, shall be convicted and punished for the crime of illegal business in accordance with the provisions of Article 225 of the Criminal Law. Article 2 Where counterfeit and shoddy cigarettes, cigars and other tobacco monopoly products have not been sold, and the value of the goods reaches more than three times the threshold for conviction of sales amount stipulated in Article 140 of the Criminal Law, or the sales amount does not reach 50,000 yuan, but the total value with unsold goods reaches more than 150,000 yuan, the crime of producing and selling counterfeit and shoddy products (attempted) shall be convicted and punished. If the amount of sales and the value of unsold goods reach different legal punishment ranges or both reach the same legal punishment range, a heavier punishment shall be given as appropriate within the legal punishment range with heavier punishment. If the sales price of seized unsold counterfeit cigarettes and cigars can be ascertained, it shall be calculated according to the actual sales price. If the actual sales price cannot be ascertained, if there is a brand, it shall be calculated according to the retail price issued by the provincial tobacco monopoly administration department where the brand cigarettes and cigars are seized; If there is no brand, it shall be calculated according to the average retail price of cigarettes in the previous year issued by the provincial tobacco monopoly administrative department at the place where it was seized. Article 3 The illegal operation of tobacco monopoly commodities shall be deemed as "serious" as stipulated in Article 225 of the Criminal Law under any of the following circumstances: (1) The illegal operation amount is more than 50,000 yuan, or the illegal income is more than 20,000 yuan; (2) Illegally handling more than 200,000 cigarettes; (three) more than two times in three years due to illegal tobacco monopoly products by administrative punishment, illegal tobacco monopoly products in the amount of more than 30 thousand yuan. Under any of the following circumstances, it shall be deemed as "the circumstances are particularly serious" as stipulated in Article 225 of the Criminal Law: (1) The amount of illegal business operation is more than 250,000 yuan, or the amount of illegal income is more than 100,000 yuan; (2) Illegally handling more than one million cigarettes. Article 4 If the selling or purchasing price of tobacco monopoly products can be found out illegally, the illegal business amount shall be calculated according to the selling or purchasing price. If the sales or purchase price cannot be ascertained, the illegal business amount shall be calculated according to the following methods: (1) The price of seized cigarettes and cigars, if there is a brand, shall be calculated according to the retail price issued by the provincial tobacco monopoly administration department where the brand cigarettes and cigars are seized; If there is no brand, it shall be calculated according to the average retail price of cigarettes in the previous year issued by the provincial tobacco monopoly administrative department at the place where it was seized; (two) the price of the seized redried flue-cured tobacco leaves and tobacco leaves shall be calculated according to the average benchmark price of flue-cured tobacco allocation in the previous year issued by the provincial tobacco monopoly administrative department at the place of seizure; (3) The price of cut tobacco shall be calculated at 1.5 times of the price calculation standard specified in item (2); (four) the price of cigarette accessories, if there is a brand, shall be calculated according to the price issued by the provincial tobacco monopoly administration department where the brand accessories are seized; If there is no brand, it shall be calculated according to the average price of such cigarette accessories required by the tobacco industry in the previous year issued by the provincial tobacco monopoly administrative department at the place where it was seized; (five) the price of illegal production, sale and purchase of special tobacco machinery shall be calculated according to the national guidance price catalogue of special tobacco machinery products issued by the department of tobacco monopoly administration in the State Council; If there is no such special tobacco machinery in the catalogue, it shall be calculated according to the average price of similar special tobacco machinery in the catalogue issued by the tobacco monopoly administrative department at or above the provincial level. Article 5 If an actor commits the crime of illegally producing and selling tobacco monopoly products, which also constitutes the crime of producing and selling fake and inferior products, the crime of infringing intellectual property rights and the crime of illegal business operation, he shall be convicted and punished in accordance with the provisions of heavier punishment. Article 6 Whoever knowingly provides others with loans, funds, account numbers, invoices, certificates and licenses, or provides others with convenient conditions such as production and business premises, equipment, transportation, warehousing, storage, mailing, import and export agency, or provides others with production technology and cigarette formula, shall be investigated for criminal responsibility according to the crime of * * *. Article 7 If it is necessary to identify fake and shoddy tobacco monopoly products in handling criminal cases such as illegal production and sale of tobacco monopoly products, it shall be entrusted to the product quality supervision and administration department of the State Council and the tobacco quality inspection institution designated by the product quality supervision and administration department of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government. Article 8 Whoever obstructs tobacco monopoly law enforcement officers from performing their duties according to law by violence or threat, which constitutes a crime, shall be investigated for criminal responsibility for the crime of obstructing official duties. Inciting the masses to violently resist the enforcement of the tobacco monopoly law, which constitutes a crime, shall be investigated for criminal responsibility for the crime of inciting violence to resist law enforcement. Article 9 The term "tobacco monopoly products" as mentioned in this Interpretation refers to cigarettes, cigars, cut tobacco, redried tobacco leaves, tobacco leaves, cigarette paper, filter rods, cigarette tows and special machinery for tobacco. The cigarette accessories mentioned in this interpretation refer to cigarette paper, filter rods and cigarette tows. The term "special machinery for tobacco" as mentioned in this interpretation refers to the machinery and equipment that can complete one or more specific processing procedures and operate independently in the Catalogue of Special Machinery for Tobacco published by the Department of Tobacco Monopoly Administration of the State Council, and is used to produce and process cigarettes, cigars, cut tobacco, redried tobacco leaves, tobacco leaves, cigarette paper, filter rods and cigarette tows. The special machinery similar to tobacco mentioned in this interpretation refers to the machinery and equipment that can complete the same processing procedures in the production and processing of cigarettes, cigars, shredded tobacco, redried tobacco leaves, tobacco leaves, cigarette paper, filter rods and cigarette tows. Article 10 If the relevant provisions previously issued are inconsistent with this interpretation, this interpretation shall prevail. The Supreme People's Court, the Supreme People's Procuratorate, Ministry of Public Security and State Tobacco Monopoly Bureau on Printing and Distributing the Summary of the Symposium on Applicable Laws in Handling Criminal Cases of Fake and Inferior Tobacco Products (release date: 2003- 12-23, Effective date: 2003-12/23) Notice of the Supreme People's Court, the Supreme People's Procuratorate, Ministry of Public Security and State Tobacco Monopoly Bureau DocumentNo.: People's Procuratorates of autonomous regions and municipalities directly under the Central Government, Public Security Departments, bureaus, Tobacco Monopoly Bureaus, PLA Military Courts, Military Procuratorates, Production and Construction Corps Branch of Higher People's Court of Xinjiang Uygur Autonomous Region, People's Procuratorate of Xinjiang Production and Construction Corps, Public Security Bureau: Now "the Supreme People's Court, The Supreme People's Procuratorate, the Ministry of Public Security and the State Tobacco Monopoly Bureau issued a summary of the symposium on the application of law in handling criminal cases of counterfeit and shoddy tobacco products to you for your reference. If there are any problems in the implementation, please report them to the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the State Tobacco Monopoly Bureau in time. Summary of the symposium on the application of law in handling criminal cases such as counterfeit and shoddy tobacco products held by People's Republic of China (PRC), the Supreme People's Court, People's Republic of China (PRC), the Supreme People's Procuratorate, the People's Republic of China and the State Tobacco Monopoly Bureau of the Ministry of Public Security on February 23rd, 2003. Criminal acts such as producing and selling fake and shoddy tobacco products have seriously damaged the national tobacco monopoly system, disrupted the socialist market economic order and infringed on the legitimate rights and interests of consumers. Since 200 1, the Ministry of Public Security and the State Tobacco Monopoly Bureau have jointly launched a special campaign to crack down on cigarette counterfeiting and achieved remarkable results. At the same time, in the process of investigating and dealing with criminal cases such as the production and sale of fake and shoddy tobacco products, some problems in the application of the law have also been encountered. Therefore, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the State Tobacco Monopoly Bureau held a symposium on the application of law in handling criminal cases such as counterfeit and shoddy tobacco products in Kunming from August 4 to 6, 2003. Relevant personnel from some provinces, autonomous regions, municipalities directly under the Central Government, the Supreme People's Court, the Supreme People's Procuratorate, Ministry of Public Security, State Tobacco Monopoly Bureau, courts, procuratorates, public security departments (bureaus), Tobacco Monopoly Bureau and other units attended the meeting. The Criminal Law Office of the National People's Congress Standing Committee (NPCSC) Law Committee was invited to send staff to attend the meeting. On the basis of summing up the experience in handling cases, according to the relevant provisions of laws and judicial interpretations, the participants conducted extensive discussions on some specific applicable legal issues with universality in handling criminal cases such as counterfeit and shoddy tobacco products, and formed * * * knowledge. The summary is as follows: 1. Legal issues concerning the production and sale of fake and inferior tobacco products (1) Conviction and sentencing of producing fake and inferior tobacco products that have not been sold or cannot be sold. According to the provisions of Article 140 of the Criminal Law, the production and sale of fake and inferior tobacco products with a sales amount of more than 50,000 yuan constitutes the crime of producing and selling fake and inferior products. According to the relevant provisions of 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, the sales amount refers to all illegal income obtained and deserved by producers and sellers after selling fake and inferior tobacco products. If the fake and inferior tobacco products have not been sold, and the value of the goods is more than three times (150,000 yuan) of 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. Those who have not yet sold fake and inferior tobacco products, and the value of the goods reaches more than 150,000 yuan but less than 200,000 yuan, more than 200,000 yuan but less than 500,000 yuan, more than 500,000 yuan and less than 2 million yuan respectively, shall be convicted and punished in accordance with the sentencing grade stipulated in Article 140 of the Criminal Law. If the amount of selling fake and inferior tobacco products is less than 50 thousand yuan, but the total value with unsold fake and inferior tobacco products reaches more than 150 thousand yuan, it will be convicted and punished for the crime of producing and selling fake and inferior products (attempted). The fake and shoddy tobacco products have not been sold, so it is impossible to calculate the value of the goods. Under any of the following circumstances, he shall be convicted and punished for the crime of producing and selling fake and inferior products (attempted): 1, the quantity of cut tobacco used for producing fake and inferior cigarettes is more than 1000 kg; 2, the production of fake and shoddy tobacco leaves in the number of more than 65438 0500 kg. (II) Conviction and Punishment of Illegal Production, Assembly and Sale of Special Tobacco Machinery Whoever illegally produces, assembles and sells special tobacco machinery shall be investigated for criminal responsibility for the crime of producing and selling fake and inferior products in accordance with the provisions of Article 140 of the Criminal Law. Second, about the "knowing" problem in the act of selling tobacco products that are knowingly counterfeit registered trademarks According to the provisions of Article 214 of the Criminal Law, selling tobacco products that are knowingly counterfeit registered trademarks, if the sales amount is large, constitutes the crime of selling goods with counterfeit registered trademarks. "Know" means to know or should know. In any of the following circumstances, it can be considered as "knowing": 1, buying goods at a price significantly lower than the market price; 2. Selling at a price significantly lower than the market; 3, the sale of counterfeit registered trademarks of tobacco products is found after the transfer, destruction of physical evidence or provide false certificates, false information; 4. Other circumstances that can be identified as knowing. 3. Legal issues concerning illegal trading in tobacco products: those who produce, wholesale or retail tobacco products without the permission of the department of tobacco monopoly administration and without the production license, wholesale license or retail license shall be convicted and punished in accordance with the provisions of Article 225 of the Criminal Law: 1, where the amount of illegal business by individuals is more than 50,000 yuan, or the amount of illegal income is more than 10,000 yuan; 2. The illegal business operation amount of the unit is more than 500,000 yuan, or the illegal income amount is more than100,000 yuan; 3. Being subject to administrative punishment for illegal operation of tobacco products for more than two times and the amount of illegal operation is more than 20,000 yuan; Four. Regarding * * * who knows or should know that others commit the criminal acts specified in Articles 1 to 3 of this Summary, but still commits one of the following acts, it shall be deemed as * * * and shall be investigated for criminal responsibility according to law: 1, directly involved in the production and sale of counterfeit and shoddy tobacco products or tobacco products with counterfeit cigarette registered trademarks, or directly involved in the illegal operation of tobacco products and played a major role in it; 2. Provide houses, venues, equipment, vehicles, loans, funds and account numbers.
Objects and conditions for trial:
(1) The object of probation must be a criminal sentenced to criminal detention or fixed-term imprisonment of not more than three years.
(2) criminals do show repentance, and the application of probation will no longer harm society, that is, the court believes that it will not harm society without detention. The above two items are indispensable.
(3) The criminal law stipulates that recidivists can't be suspended regardless of the length of their sentences.
Probation period:
Article 73 of the Criminal Law stipulates that the probation period of criminal detention is more than one year and less than two months. The probation period of probation for fixed-term imprisonment shall be not less than the original sentence but not less than five years, but not less than one year. The probation period of probation shall be counted from the date when the judgment is determined. If a suspended criminal is sentenced to an additional punishment, the additional punishment shall still be executed.
Investigation of probation offenders and revocation of probation;
According to the provisions of Article 76 of the Criminal Law, criminals who have been declared on probation shall be inspected by the public security organs within the probation period, and their units or grass-roots organizations shall cooperate. If there are no circumstances stipulated in Article 77 of the Criminal Law, the probation period of probation expires, and the original sentence will no longer be executed and will be publicly announced.
If, during the probation period of probation, a criminal who has been declared suspended commits a new crime or finds that there are other crimes for which no judgment has been given before sentencing, the suspended sentence shall be revoked, a judgment shall be made for the newly committed crime or newly discovered crime, and the punishment to be executed shall be decided in accordance with the provisions of Article 69 of the Criminal Law.
If, during the probation period of probation, a criminal who has been declared suspended violates laws, administrative regulations or the supervision and management regulations of the public security department of the State Council, if the circumstances are serious, his probation shall be revoked and the original sentence shall be executed.
The difference between reprieve and reprieve
First, the application premise is different. The application of probation is based on the premise that criminals are sentenced to criminal detention and fixed-term imprisonment of not more than three years; The application of reprieve is conditional on the criminal being sentenced to death.
Second, the law enforcement methods are different. Criminals who have been sentenced to probation shall not be detained, but shall be inspected by the public security organs with the cooperation of their units or grass-roots organizations; Criminals sentenced to death must be imprisoned and reformed through labor.
Third, the test cycle is different. The probation period of probation must be determined according to the type and term of imprisonment. The difference between prison term and prison term determines that it has different legal trial periods; The statutory time limit for suspension of execution of death penalty is 2 years.
Fourth, the legal consequences are different. The legal consequences of probation are: not executing the original sentence, or revoking the probation, dealing with the punishment for the former crime and the latter crime according to the principle of combined punishment for several crimes, or putting the original sentence in prison for execution; The consequences of suspended execution of death penalty are: after the probation period expires, the sentence will be commuted or the death penalty will be executed according to the criminal's performance. During the probation period of probation, criminals may also be executed because they violate the statutory conditions.