Presiding judge: I am entrusted by Gong XX, the defendant in the case of manufacturing and selling counterfeit drugs, to act as his defender. Today, he appeared in court to perform his defense duties according to law. According to the facts ascertained by the court investigation and relevant laws and regulations, the following defense opinions are put forward: the defender noticed that Gong XX was accused of manufacturing and selling counterfeit drugs in the indictment, and when the investigation organ took compulsory measures against Gong XX in the investigation stage of this case, Gong XX and the defender also noticed that in yesterday's court investigation, including before the court investigation, when the presiding judge asked Gong XX for his opinion on the indictment, Gong XX confessed that he knew or should have known that someone had entrusted him to process drugs on his behalf. The defender believes that the defendant Gong XX's behavior is indeed an act that should be negatively evaluated. However, whether his behavior should be negatively evaluated in criminal law needs to be analyzed in combination with the legal elements of Gong XX's alleged crime. From this perspective, the defender believes that the defendant Gong XX's behavior does not constitute the crime of producing and selling counterfeit drugs, nor does it constitute the crime of producing and selling fake and inferior commodities. I. Defendant Gong Xx's behavior does not constitute the crime of producing and selling counterfeit drugs. (1) Defendant Gong Xx has no subjective intention to produce and sell counterfeit drugs, 1, and some verbal evidence against Defendant Gong Xx. Although Gong Xx admitted that he was entrusted to process drugs, the facts of criminal cases should be analyzed in combination with the evidence of the whole case. Judging from the evidence in this case, the evidence against the defendant Gong XX is the defendant's confession, the defendant's confession and Guo's testimony. However, there are many contradictions between his confession and his confession, and between his confession and Guo's testimony, which cannot be mutually confirmed. It can't be proved that they told Gong XX to commission the processing of Xinkeshu pills. Specifically: (1) Witness Guo said that when he went to Zibo alone to contact Gong XX to process Xinkeshu tablets, Gong XX asked whether the prescription he provided was for the treatment of cardiovascular diseases, but these were only Guo's unilateral statements, and Gong XX did not confess, so he could not confirm them. (2) Guo said that when he went to Zibo to find Gong XX, Gong XX asked if he wanted to produce Xinkeshu granules. Yu Jinyong also said to Gong XX, "We should make our own comfort", but Yu Jinyong didn't confirm this, and Gong XX didn't confess, so it can't be confirmed. (3) The defendant confessed in court that Guo himself went to Zibo to contact Gong XX to process pills. After returning, Guo told himself that Gong XX was clearly told that it was Xinkeshu Pill, but the defender believed that even if the confession was true, it was only evidence with limited probative force. Moreover, Guo himself didn't confirm whether he told me after he came back from Zibo. (4) The defendant confessed that he and Guo went to Zibo to discuss with Gong Xx. When referring to the processing price, Yu Jinyong told Gong Xx that the production cost of Chinese medicine factory was less than that of 2 yuan, and Gong XX promised to take a piece of packaging. Guo didn't confirm it, but Gong XX didn't confess. (5) The defendant's statement that the product formula and technology provided to Gong XX were written with the word "new", which was not true after trial. (6) The defendant confessed that when he went to Zibo with Gong XX to pay a deposit and pull pills, Gong XX had shown them some Xinkeshu capsules and Xinkeshu tablets produced by their factory, but first, Zibo XX had never produced these products. Second, the above facts have not been confirmed, and Gong Xx has not confessed. (7) Yu Jinyong confessed that he had faxed the drug inspection report of Wohuaxin tablets to Gong Moumou. In the investigation stage, Yu Jinyong confessed that the drug test report was obtained by Wang Xiaochun through a former colleague of Weili Pharmaceutical. Defendant Wang Xiaochun denied that he did not know the source of the inspection report. In the court trial stage, the defendant could not tell the source of the inspection report, but confessed that he did not see the fax of the inspection report to Gong Moumou and was not with Gong Moumou. At the same time, combined with the testimony of Li, the chief of XX pharmaceutical quality inspection department, it is confirmed that the product inspection is based on the general standard of tablets, which is consistent with Gong XX's confession. Therefore, the fact that someone else faxed the inspection report of Wohuaxin Company to Gong XX cannot be recognized. To sum up, the sale of counterfeit drugs should be severely cracked down. The behavior of buying and selling counterfeit drugs is very harmful and unfavorable to personal and social stability, and must be put an end to it, which not only hurts money but also threatens life. However, some people defend this behavior, mainly from the defendant's point of view, and are suspected of participating in the crime to defend themselves.
Legal objectivity:
Article 98 of the Drug Administration Law of People's Republic of China (PRC) prohibits the production (including preparation, the same below), sale and use of counterfeit and inferior drugs. Under any of the following circumstances, it is a counterfeit drug: (1) the ingredients contained in the drug are inconsistent with those stipulated in the national drug standards; (2) passing off non-drugs as drugs or passing off other drugs as drugs; (3) Deteriorated drugs; (4) The indications or functional indications of drugs are beyond the prescribed scope. Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Public Security Organs to Jurisdiction over Criminal Cases (1) Paragraph 3 of Article 17 stipulates? Fake drugs? , refers to the 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). If it is difficult to determine whether it belongs to counterfeit drugs, it can be identified according to the appraisal opinions and other related materials issued by the pharmaceutical supervisory and administrative departments at or above the municipal level.