From 20 13 to 10, Huang Dahao sold fake and inferior cigarettes to "Chunzi" and "awei" at a price of * * * 7,700 yuan without obtaining a tobacco monopoly retail license. 20 13, 13 On February 5th, Huang Dahao hired a truck driver Ni Yongxin (handled separately) to transport cigarettes to Gangmen Village warehouse through Guo Tong Express Company, and was arrested by the public security police. At the scene, the police seized 933.5 cigarettes of Soft China, Hard China, Soft Yuxi, Soft Peony, Liqun and other brands stored in the warehouse. After identification, all cigarettes are counterfeit registered trademarks, and the amount involved is139,000 yuan. At noon the next day, the police and Huang Dahao went to Guo Tong Logistics Company and seized 250 pieces of Yellow Crane Tower brand cigarettes that Huang Dahao was going to sell. After identification, these cigarettes are also counterfeit cigarettes with counterfeit registered trademarks, involving a total amount of 37,000 yuan.
On September 26th, 20 16, Sanya Intermediate People's Court held that Huang Dahao had committed the crime of illegal business operation and was sentenced to two years' imprisonment. After the verdict was pronounced, Huang Dahao refused to accept the appeal.
Recently, the Higher People's Court of Hainan Province held that, according to the fifth paragraph of Article 1 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 Illegal Production and Sale of Tobacco Monopoly Products, those who violate the laws and regulations of the state on tobacco monopoly management and illegally operate tobacco monopoly products without the permission of the tobacco monopoly administrative department, tobacco monopoly production enterprise license, tobacco monopoly wholesale enterprise license, tobacco monopoly enterprise license and tobacco monopoly retail license, if the circumstances are serious, shall be in accordance with Article 225 of the Criminal Law. Accordingly, the court finally rejected the appeal and upheld the original judgment.
This case is a typical criminal case of illegal tobacco business. In practice, there are two views on the above explanation. The first view is that the tobacco monopoly products stipulated in this article generally refer to real cigarettes, and only the illegal sale of real cigarettes constitutes the crime of illegal business operation; The second view is that as long as the actor has not obtained a tobacco monopoly license, no matter whether he illegally sells real cigarettes or fake cigarettes, he should be convicted and punished for the crime of illegal business operation.
The investigating judge said that the first view is a one-sided understanding of the law. Because, if selling fake cigarettes does not constitute the crime of illegal business operation, and selling real cigarettes constitutes the crime of illegal business operation, it will result in "the punishment for illegally selling fake cigarettes is lighter than the punishment for illegally selling real cigarettes", which is not in line with the legislative intention of punishment and is not conducive to judicial justice.
In China, the production, sale, import and export of tobacco monopoly products are subject to monopoly management according to law, and a tobacco monopoly license system is implemented. Therefore, whether this case constitutes the crime of illegal business operation depends on whether the defendant has obtained the certificate of tobacco monopoly license. Without a business license certificate, the crime of selling counterfeit registered trademark goods (attempted), the crime of selling fake and inferior products (attempted) and the crime of illegal business operation shall be punished concurrently, and the crime of illegal business operation shall be punished concurrently. If the defendant obtains a tobacco monopoly license, it does not constitute the crime of illegal business operation, but it also constitutes the crime of selling goods with counterfeit registered trademarks (attempted) and the crime of selling fake and inferior products (attempted), so he should choose one felony, that is, the crime of selling goods with counterfeit registered trademarks (attempted) for punishment.