1. Determination of the amount of illegal business in tobacco cases
In handling tobacco cases, the amount of illegal business must be determined first. The judicial interpretation stipulates that the conviction and sentencing are generally based on the amount of sales or illegal income. The amount of illegal income usually refers to the profit after deducting the cost from the sales amount of criminals, but the profit flexibility is very large and it is difficult to find out. Usually, the amount of illegal business is determined by the sales amount. For products that have been produced and successfully sold, the illegal business amount is the sales amount, while for products that have not been sold but have been seized during production or transportation, the illegal business amount is the value amount.
(I) Determination of the sales amount
1. Determine the sales amount based on the evidence of the whole case. For the tobacco products that have been sold, the price and quantity cannot be determined only by the confession of the criminal suspect. It is also necessary to verify the next family who bought the products, and use the testimony of the next family to confirm the confession of the criminal suspect. If the two are inconsistent, it will be determined from the low according to the principle of benefiting the defendant. If the defendant's confession alone cannot be verified, other evidence should be combined to determine whether the defendant's confession is true. For example, Wang XX sells fake cigarettes and sells them all to other places. After the incident, in order to escape the investigation, Wang Xx threw away his mobile phone, and the investigation organ could not find his next home. However, Wang Xx confessed that the payment for the sales was collected through bank transfer, and the investigation organ obtained the bank transfer voucher, which confirmed the authenticity of his confession. Accordingly, we take Wang XX's confession as the basis for determining the sales amount.
2. Pay attention to collecting documentary evidence. Production, sales quantity, price and other records. The record book is an important documentary evidence to determine the sales amount, and such evidence should be fixed in time. In addition, criminal suspects and witnesses should be questioned to verify the authenticity of the contents of the sales record book, and the variety, quantity and unit price of fake cigarettes sold or purchased should be verified clearly. For example, when we handled the case of Liu××× and Huang××× producing fake cigarettes, Huang××× recorded the sales unit price, quantity and variety of each batch of fake cigarettes in detail. The public security organ searched the notebook from his home and seized it. Then both Huang XX and Liu XX confessed to the truth of the confession in the notebook. We determined the sales amount of the suspect according to the variety, quantity and unit price of the fake cigarettes recorded in the notebook.
(II) Determination of value and amount of goods
For counterfeit cigarettes seized at the production site or in transit, if there is no sales time, there will be no sales amount. Judicial interpretation convicts and punishes this situation with the value of the goods, and treats it as attempted crime. How to determine the value of goods, the judicial interpretation stipulates three methods: ① if the sales price can be ascertained, it shall be calculated according to the actual sales price; ② 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 department of tobacco monopoly administration; ③ 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.
What needs to be noted here is whether the selling price can be determined according to the confession of the criminal suspect if the selling price is only the confession of the criminal suspect and there is no other evidence to support the confession of the criminal suspect. Our view is that if the suspect's confession is reasonable, such as higher than the purchase price, the balance after deducting transportation expenses, the price of the sales destination of fake cigarettes, etc., the sales price will be determined according to the objective facts of the case according to the suspect's confession; Moreover, the confession of the criminal suspect belongs to the types of evidence prescribed by law. Try not to calculate according to the retail price determined by the tobacco department, because there is a big difference between the two, such as fake cigarettes, fake cigarettes sold in 7 yuan, and real cigarettes sold for more than 2 yuan. If real cigarettes constitute a crime, fake cigarettes do not constitute a crime, resulting in fake cigarettes not being sold, which constitutes a crime with little social harm, while those with great social harm do not constitute a crime, but they also constitute a crime with great social harm. Harmful does not constitute a crime, which obviously violates the original intention of legislation.
II. Determination of the crime amount of principal and accessory in tobacco cases
In the same criminal cases, if the semi-finished products, finished products, raw materials and tobacco machinery for producing fake cigarettes are seized, the public security organs will generally entrust an appraisal institution to appraise all the articles involved. How to identify the responsibility of * * * and the criminal suspect in the crime with the expert conclusion is a problem that needs to be discussed.
In the case of handling counterfeit cigarettes, the boss and his employees are usually caught. For example, in the case of counterfeit cigarettes in Tongji Town, Pengzhou City, which was seized by the public security organs, 9 counterfeit workers were stopped at the scene; In the case of counterfeit cigarettes in Xianghua Town, Pengzhou City, even the boss was in the case of counterfeit cigarettes, and even the boss was in * * * *, and 7 people were blocked; Shifang city in the case of counterfeit cigarettes, even the boss in the case of counterfeit cigarettes, even the boss in * * * *, nine people were blocked. Usually, both the boss and the coolie are accomplices. The coolie is employed to take part in the labor, earning only monthly salary, which plays a small role in the accomplice and is generally recognized as an accessory. The coolie is generally divided into two situations. One is to participate in the whole production process, from the beginning of producing fake cigarettes to the seizure, and never give up. For example, in the case of producing fake cigarettes in Nancy Zhang, employees came from Anhui and participated in the whole production process. In another case, the employees are migrant workers found by the boss nearby. Their wages are not paid by the month, but by piece. The boss pays the wages according to the daily workload of each worker. These migrant workers do not participate in the production of fake cigarettes every day, but only work at home during the peak season and come back to help produce for a few days in the off-season. For example, in the case of counterfeit cigarettes in shifang city, the boss hired idle rural women nearby to help pack cigarettes, and each cigarette was paid at the price of 5% or 6%.
the behavior of the boss and other organizers or active participants in producing fake cigarettes should be recognized as the principal offender, who should bear criminal responsibility for the whole crime, and the amount of the crime after the identification of the seized articles involved should be recognized as the total amount of the crime of the principal offender.
A coolie is an accessory in a joint crime, so he can only be investigated for criminal responsibility for participating in the crime. In the case of the attempted crime of counterfeit cigarettes, the appraisal institution appraised the prices of all the seized articles related to counterfeit cigarettes. It is inappropriate for someone to directly use the appraisal conclusion to determine the crime amount of coolies. Generally, the value of tobacco machinery should be deducted, and the crime amount of coolies should be determined according to the seized cigarettes, semi-finished products and fake raw materials. Because tobacco machinery is purchased by the boss for employees to use, this part of the amount should not be included in the crime amount of * * *. Because the coolies didn't participate in buying tobacco machinery. Careful analysis of the judicial interpretation also stipulates the conviction of the purchase, sale and production of tobacco machinery, but does not stipulate the conviction of the use of tobacco machinery, which is why. For example, in the case of nine people, including Zhang XX, all the workers were arrested, and the organizers of counterfeit cigarette production were at large. On the basis of identifying the seized fake raw materials, semi-finished products, seized cigarettes and tobacco machinery, it was determined that the total value of * * * * was 33, yuan, of which the value of one cigarette maker was 5, yuan. After determining the crime amount of nine laborers, it was deducted from the total amount of cigarette makers to 28, yuan, and nine laborers were prosecuted and identified as accomplices.
Third, imagine that the co-opetitioners choose a felony punishment
In tobacco-related cases, according to the amount of illegal business, compare the crime of producing and selling fake and inferior products, the crime of illegal business, the crime of counterfeiting registered trademarks or the crime of selling goods with counterfeit registered trademarks, and choose a felony punishment.
if there is only the amount of goods, the above-mentioned crimes shall be convicted and punished. What needs to be discussed is that the judicial interpretation of the crime of producing and selling fake and inferior products has an attempted form, and the value of goods needs to reach three times the amount of attempted crime. The judicial interpretation of the crime of counterfeiting registered trademarks also clearly stipulates that there is an attempt, and the amount is not specifically stipulated, which is determined according to the starting point of conviction of attempted crime. However, the judicial interpretation has not clearly defined whether there is an attempted form of the crime of illegal business operation. We believe that the crime of illegal business operation should also have the form of attempted crime. The reason is that the object of protection of the crime of illegal business operation is the national tobacco monopoly system. China implements the tobacco monopoly license system without obtaining the tobacco monopoly license, which constitutes this crime. However, in the case of only the amount of payment, the criminal suspect bought back raw materials, bought back tobacco shredders for production or was sealed in the production process, and did not make products for sale, which did not violate the national tobacco monopoly system. However, the criminal suspect has started to commit crimes, but it has not succeeded due to reasons other than criminal will, so it is more objective to determine the attempted crime. Whether to determine the attempted amount according to the attempted amount or how many times the attempted amount is not clearly stipulated by law, but we can refer to the method of determining the amount in the crime of counterfeiting registered trademarks for conviction and punishment.
iv. conviction and punishment based on the number of cigarettes with counterfeit registered trademarks
according to the judicial interpretation, if there are more than 2, cigarettes illegally, the circumstances of the crime of illegal business are serious, and if there are more than one million cigarettes illegally, the circumstances of the crime of illegal business are particularly serious. This refers to .2 million/2 thousand or 1 million cigarettes. If the suspect deals in cigars, it cannot be regarded as a crime according to the provisions of quantitative interpretation. The reason is that cigarettes and cigars are different kinds of cigarettes. Cigarettes are tobacco products rolled into strips with cigarette paper, also known as cigarettes, cigarettes and cigarettes. Cigar is a kind of cigarette, which is a pure natural tobacco product made from the original tobacco leaves after air drying, fermentation and aging. The judicial interpretation lists cigarettes and cigars side by side. For example, "whoever produces and sells fake and inferior cigarettes, cigars and other tobacco monopoly products with a sales amount of more than 5, yuan shall be convicted and punished for the crime of producing and selling fake and inferior products in accordance with the provisions of Article 14 of the Criminal Law". Therefore, cigarettes can be identified according to the number of illegal business operations, while cigars cannot be regarded as the standard of conviction and punishment according to the number of cigarettes.
V. Changing the qualitative jurisdiction of cases involving tobacco infringement of intellectual property rights
If the public security organ obtains the jurisdiction of the case through the designated jurisdiction of the public security organ at a higher level, the public security organ transfers the case of counterfeit cigarettes infringement of intellectual property rights to prosecution, and the procuratorate considers that it should choose to identify the crime of illegal business operation according to the provisions of felony punishment. In this case, if the procuratorial organ prosecutes the crime of illegal business operation, does the court have jurisdiction? Because the judicial interpretation of cases of infringement of intellectual property rights stipulates that if the public security organ obtains the jurisdiction of the case through designated jurisdiction, the procuratorate and court where the public security organ is located will of course obtain jurisdiction and cannot designate jurisdiction again. Then, after the case is changed, does the judicial organ where the public security organ is located have jurisdiction? The answer is yes. A careful analysis of the judicial interpretation shows that what is stipulated here is the nature of the case, not the charges. Although the procuratorial organ has changed the charges, it still belongs to the case of infringement of intellectual property rights, because tobacco-related cases often infringe on multiple objects protected by law. Conviction of the case is only a way to deal with the case, and it will not change the nature of the case. For such tobacco-related cases, the judicial organ where the public security organ is located certainly has jurisdiction, and it is impossible to designate jurisdiction.