First, the concept of the crime of producing and selling fake and inferior commodities
(a) the definition and object of the crime of producing and selling fake and inferior commodities
The so-called crime of producing and selling fake and inferior commodities refers to the act of producing and selling fake and inferior commodities for the purpose of making illegal profits, violating the national product quality management regulations, seriously damaging the interests of users and consumers and endangering the socialist market economic order, which should be punished by criminal law. The object of the crime of producing and selling fake and inferior commodities is "fake and inferior commodities". Therefore, to understand the connotation of the crime of producing and selling fake and inferior commodities, we must first define "fake and inferior commodities" scientifically. Because whether the goods produced and sold by the actor belong to fake and shoddy goods and what kind of fake and shoddy goods it is directly determines whether the actor constitutes a crime and what kind of crime it constitutes. It is the basis of studying the crime of producing and selling fake and inferior commodities.
(B) the meaning of "fake and shoddy goods"
"Fake and shoddy goods" refers to goods with relatively fixed connotation and legal significance. First of all, from an economic point of view, goods are not completely equivalent to products. Products are material achievements created by labor, and commodities are exchanged labor products. Product is a static concept. Only when it is used for exchange purposes and enters the circulation field can it become a real commodity. If a product is produced only to meet the needs of producers, it cannot be called a commodity. Secondly, the goods in "fake and shoddy goods" have certain extension restrictions. Articles 2 and 73 of the Product Quality Law of People's Republic of China (PRC), which came into effect on September 1993, stipulate: "The products mentioned in this Law refer to products processed and manufactured for sale." But it does not include construction engineering and military products. Therefore, commodities that produce and sell fake and inferior commodities are the target of crime. It also uprooted houses, bridges, underground mineral deposits, wild plants and national defense and military products; It refers to movable property such as industry, agriculture and daily life that can be circulated, as well as military-to-civilian products and high-tech products that can be circulated.
Fake and shoddy goods have broad and narrow meanings. The so-called fake and shoddy goods mean that the goods produced and sold violate the provisions of relevant state laws and regulations, and the quality and performance can not meet the requirements of mandatory standards. Or fraudulently use or forge the factory name, address and quality certification mark; Or items that have lost their use value. It is characterized in that: 1. Fake and inferior commodities include counterfeit commodities; Second, its legal liability may be criminal, civil, economic and administrative. In a narrow sense, fake and shoddy goods refer to the objects of producing and selling fake and shoddy goods, that is, the goods produced and sold violate the provisions of national laws and regulations, and their quality is inferior, unqualified or lose their use value. According to the provisions of Articles 49, 50 and 52 of the Product Quality Law, fake and shoddy goods in a narrow sense mainly include: 1, products that do not meet the national and industrial standards for protecting human health, personal and property safety; 2. Doped, adulterated, fake and shoddy products; 3. Unqualified products; 4. Invalid and deteriorated products.
When identifying fake and shoddy goods in a narrow sense, the following boundaries should be drawn:
1, the boundary between fake and shoddy goods and fakes.
The so-called counterfeiting refers to the behavior that the actor violates the provisions of national laws and regulations, produces and sells its products under the guise of famous brands or well-known brands, and harms users or consumers. Therefore, in a broad sense, the content of counterfeit products does not match the name. It is also a fake and shoddy product. But in a narrow sense, counterfeit and shoddy goods mainly refer to inferior quality or loss of use value, which is different from counterfeit products. For example, goods with fake origin, factory name, address or quality certification mark are only fakes, not fakes. And fake and shoddy goods are sometimes sold as other famous brand products, so this time is fake and shoddy goods.
2. The boundary between fake and shoddy goods and genuine goods.
Authentic products refer to goods that meet quality standards, which are divided into superior products and first-class products. According to the classification of commodities, genuine products do not belong to counterfeit and shoddy products. On the other hand, defective products that do not meet the quality standards, defective products with obvious appearance defects or affect the use value, and waste products that do not meet the technical standards and cannot be used normally are all fake and shoddy products.
Second, the characteristics of the crime of producing and selling fake and inferior commodities
The crime of producing and selling fake and inferior commodities, as a crime that undermines the order of the socialist market economy, has the following characteristics:
(A) the characteristics of the subject of crime
As the subject of the crime of producing and selling fake and inferior commodities, according to the provisions of the criminal law, it can be either an individual or a unit. Units can be legally established or illegal units that have not been registered by the industrial and commercial departments. Whether it is legally established or illegally established, it does not affect the fact that the unit constitutes a crime. As an individual who commits this crime, it is a general subject, that is, a natural person who has reached the age of criminal responsibility and has the ability of criminal responsibility, so as to become the subject of this crime. Of course, a person without full capacity cannot be the subject of this crime.
(B) the subjective characteristics of crime
The crime of producing and selling fake and inferior commodities is a deliberate crime, which requires the actor to know the fake and inferior commodities produced and sold subjectively. The so-called knowing means that the actor subjectively knows that the goods he produces and sells are fake and shoddy goods, or proves that the actor may really know that the goods he produces and sells are fake and shoddy goods rather than other goods according to objective evidence and circumstances. "Know" is not equal to "know". As long as it is confirmed that the actor can know and may know subjectively according to the objective actual situation and the subjective situation of the actor, the actor cannot deny it. Judging from the nature of this kind of crime and the cases in real life, the subjects of this kind of crime mostly have the purpose of seeking illegal economic benefits subjectively. Negligence does not constitute this kind of crime. If the actor's behavior of producing and selling fake and inferior commodities is not intentional, but due to completely objective reasons such as the production technology level can not meet the requirements or being deceived by others, and the actor is subjectively negligent rather than intentional, then the actor does not constitute this kind of crime.
(3) the characteristics of the criminal object
The criminal object of this kind of crime is a complex object. Because the varieties, properties and uses of fake and inferior commodities produced and sold by actors are different, the specific and complex objects they infringe on are also different. For example, the criminal object of the crime of producing and selling fake and inferior products is the socialist market economic order and the property rights of consumers; The criminal objects of the crime of producing and selling counterfeit drugs and inferior drugs are the drug management system and the property rights and personal rights of consumers. Among the complex criminal objects infringed by the production and sale of fake and inferior commodities, the socialist market economic order is the most basic and main criminal object, which determines the crime-like nature of the crime of producing and selling fake and inferior commodities, and other criminal objects are in a secondary position. Therefore, the crime of producing and selling fake and inferior commodities belongs to the category of crimes of disrupting the order of the socialist market economy and belongs to economic crimes, not crimes of infringing property rights, personal rights or endangering public security.
(D) the objective characteristics of crime
The most obvious objective feature of the crime of producing and selling fake and inferior commodities is that the actor objectively implemented the act of producing and selling fake and inferior commodities. The so-called production and sale of fake and inferior commodities refers to the situation in which the actor deliberately adulterates and adulterates the products produced and sold, so as to pass the fake as the real one, pass the inferior product as the good one or pass the unqualified product as the qualified product. Due to the different types, properties and uses of fake and inferior commodities produced and sold by actors, the criminal law also has different requirements for the specific objective elements of crimes related to the production and sale of fake and inferior commodities. Therefore, when identifying the crime of producing and selling fake and inferior commodities, it is necessary to make a detailed analysis of the types, nature and uses of fake and inferior commodities produced and sold by the actor, so as to determine the objective constitutive elements needed for the establishment of the crime, so as to scientifically and accurately distinguish between conviction and non-crime, this crime and that crime, and achieve accurate conviction, appropriate sentencing and punishment as a crime.
Three, define the main elements of the crime of producing and selling fake and inferior commodities.
In the judicial practice of punishing the crime of fake and shoddy goods, it is very important to strictly distinguish the boundaries between legal and illegal, illegal and criminal. Incorrect definition, whether abolished or established, is detrimental to the authority and justice of the law and is not conducive to the normal development of the economy. As the most severe coercive means, punishment can deprive criminals not only of their property rights, but also of their political rights, personal freedom and even life, so it is only a special means for the state to deal with crimes and can only be applied to criminals. Compared with compulsory means such as civil compulsory means and administrative compulsory means, it can only be the final choice. For the general acts of producing and selling fake and inferior commodities, including administrative violations, quality breaches and quality infringements, it is mainly a matter of bearing corresponding administrative or civil responsibilities. Only when the social harmfulness of this kind of production and sale of fake and inferior commodities reaches a certain level and meets the specific elements of crime stipulated in the criminal law can criminal sanctions be applied. In practice, in order to correctly identify the boundary between crime and non-crime in producing and selling fake and inferior commodities, the following factors should be considered:
(A) the quality of goods
According to the provisions of the criminal law, the object of the crime of fake and shoddy goods is fake and shoddy goods. Therefore, the quality of the goods produced and sold by the actor and whether they belong to fake and shoddy goods is the key to determine whether the crime of fake and shoddy goods constitutes or not, and it is also the main factual basis for distinguishing crime from non-crime. In order to correctly judge whether a commodity is fake or not, we must grasp the following points: First, the commodity seriously does not meet the product quality requirements stipulated by relevant laws and regulations. In principle, the relevant national laws and regulations stipulate that all kinds of products should have the same conditions, that is, the so-called "implied warranty conditions". No matter what kind of products are produced or sold, these basic quality requirements must be met. Second, the main indicators of commodities fail to meet the quality standards of related products or express guarantee conditions. In practice, all kinds of products are complicated, so it is necessary to refer to specific quality standards to determine their quality status. These multi-level quality standards are the concrete quantification of legal requirements, including both national mandatory standards, industry standards, enterprise standards and local standards. In addition, to judge the product quality, we should also refer to the express guarantee conditions of the product, that is, the express commitment or guarantee made by the producer or seller to the product quality by indicating the adopted standards, product identification, instructions for use, and physical samples. Third, commodities have basically lost their due performance. However, it is not useless to lose its own performance. On the premise of not endangering human health, personal and property safety and not affecting industrial and agricultural production, some fake and shoddy goods can be used for other purposes after technical treatment or reprocessing.
In addition, in the case of harmful results, it should also be found out whether there is a direct causal relationship between commodity quality and harmful results. If the damage accident is caused by improper use by consumers or other unexpected factors, rather than the quality of goods, the actor cannot bear criminal responsibility for the damage result.
(2) the amount of crime
Only the crime of producing and selling fake and inferior products stipulated in 140 is clearly stipulated in the criminal law. According to this article, the sales balance of producing and selling fake and inferior products must reach a certain amount to constitute a crime, that is, to reach the starting point of this crime, and four different sentencing ranges are stipulated according to the sales amount. According to the provisions of this article, the production and sale of fake and inferior products with a sales amount of more than 50,000 yuan can constitute this crime. It can be seen that the sales amount is not only the basis to measure the severity of this crime, but also an important standard to define crime and non-crime. In the crime of fake and inferior commodities, the sales amount reflects the scale of the actor's production and sales of fake and inferior products, and determines the actual benefits that the actor obtains through the production and sales of fake and inferior products. Therefore, it is completely correct and scientific to regard sales as an important reference factor to distinguish product fraud from non-crime.
(3) the seriousness of the crime
Among all kinds of specific crimes of fake and shoddy goods stipulated in the criminal law, a considerable number of crimes need legal criminal circumstances. Therefore, for these crimes, the seriousness of the crime has become the key to distinguish crime from non-crime. According to the provisions of the criminal law, the circumstances that determine the crime and non-crime of producing and selling fake and inferior commodities specifically include the following categories: (1) endangering human health. Whether it is "harmful enough to human health" can generally be judged from the following two aspects: First, judging from the nature and utility of fake and inferior commodities produced and sold, if the fake and inferior commodities produced and sold contain a large number of harmful ingredients or are seriously polluted and deteriorated, it will pose a threat to human health; Second, judging from the stage of fake and shoddy goods in the process of production and circulation, if fake and shoddy goods have been put on the market, it may endanger human health. (2) Seriously endangering human health. In practice, it generally refers to the situation that the fake and inferior commodities produced and sold by the actor cause harm to the personal health of consumers or users, make many consumers or users worse, and cause physical injury and disability, but death or serious injury is not required. If many people are killed or seriously injured, it is a situation with particularly serious consequences or serious harm to human health, and it should be regarded as a sentencing circumstance with a heavier punishment, not a conviction circumstance. (3) Causing serious consequences. In practice, "causing serious consequences" generally refers to the production and sale of electrical appliances, pressure vessels and other products that do not meet the safety standards, causing injuries and disabilities to many consumers or users, or causing direct losses of public and private property of more than 20,000 yuan due to accidents such as fires and explosions. (4) Production suffered heavy losses. In the crime of counterfeiting and shoddy goods, the degree of loss suffered by production is also the standard to distinguish crime from non-crime and crime. Among them, causing heavy losses in production is a necessary condition for this crime. It is generally believed that the fake and shoddy goods produced and sold cause a large number of livestock and poultry disabilities and deaths; Or causing a large-scale reduction or failure to harvest crops, resulting in direct economic losses of more than 50,000 yuan, which constitutes this crime.
(four) whether the seller knows the fake and shoddy goods.
According to the criminal law, the seller's "knowing" of fake and inferior commodities is a necessary element for selling fake and inferior products to constitute a crime. Therefore, for these crimes, whether the seller knows the fake and inferior goods sold has become the key issue to distinguish crime from non-crime.
According to the theory of criminal law, the seller's "knowing" of the fake and inferior goods sold belongs to the category of understanding the nature of the criminal object, which is an important content of understanding factors in criminal intent. In the crime of product fraud, the nature of the criminal object is closely related to the criminal result. Whether the actor realizes that the goods he produces and sells belong to fake and inferior goods is directly related to whether he foresees the harmful results, which determines whether the actor is guilty subjectively and whether he should bear the responsibility for it. In practice, producers are generally aware of the quality of goods. However, the production and sale of commodities is a process that can span time and space. Pure sellers do not personally participate in the manufacturing process of goods, but purchase goods from manufacturers and even other distributors through various channels. They may also be cheated because they are inexperienced, or they may not argue about their own quality because they are short of money or cheap. Therefore, in the case of selling fake and inferior commodities, whether the actor subjectively "knows" has become a more complicated problem. It is generally believed that the seller's "knowledge" of the fake and inferior goods sold includes both the knowledge directly admitted by the actor and the fact that the actor refuses to admit it, but according to the subjective and objective conditions at that time, the actor should know that the goods sold are fake and inferior. For example, disposable syringes sold by dealers who have many years of experience in selling medical devices are extremely rough in appearance and sense, and their scales are blurred. Although he denied knowing that the syringe was a fake and inferior commodity, according to the subjective and objective conditions at that time, in judicial practice, the following factors should be comprehensively considered to judge whether the seller knew it: first, whether the subject qualification is qualified, that is, whether the actor has the legal business subject qualification; The second is whether the purchase channel is proper, that is, whether the actor purchases goods from manufacturers or suppliers with formal legal procedures and whether there are formal purchase procedures or contracts; Third, whether the trading activities are open and whether the goods ordered have passed the public bidding activities; The fourth is whether the transaction price is reasonable, that is, whether the transaction price is far from the market price, or whether there is a high secret rebate outside the account in the purchase and sale activities; Fifth, whether the product logo and appearance quality are qualified, complete and shoddy. At the same time, we should also consider the quality of the seller, whether there is relevant business knowledge and experience, and so on.
It should also be pointed out that "knowing" does not mean "knowing". As long as the actor knows that the goods sold may be fake and shoddy goods, and it is confirmed by inspection afterwards that the actor knows that the goods sold are fake and shoddy goods.
In short, through the above discussion on the criminal object, constitution characteristics and definition scope of the crime of producing and selling fake and inferior commodities, we can correctly grasp the constitution characteristics of the crime of producing and selling fake and inferior commodities and the boundary between crime and non-crime in the process of cracking down on illegal and criminal activities, strictly enforce the law, and increase the intensity of law enforcement, so as not to be wasteful or vertical. Those who are fined shall be investigated for criminal responsibility according to law. Only in this way can we really crack down on the criminal activities of producing and selling fake and shoddy goods, curb the proliferation of fake and shoddy goods, promote the healthy development of the socialist market economy and maintain the normal order of the socialist market economy.