The production and sale of counterfeit cigarettes infringes upon the interests of the country, enterprises and consumers, and is extremely harmful to society. This article aims to meet the urgent need to crack down on the production and sale of counterfeit cigarettes. It studies three issues such as the concurrence of crimes, the determination of amounts, and the identification of “knowingly” elements in the production and sale of counterfeit cigarettes. It analyzes the current understanding and the problems that exist in actual work. question.

The production and sale of counterfeit cigarettes is very harmful, seriously damaging the interests of the country, enterprises and consumers, and affecting the health of consumers. In recent years, tobacco, public prosecutors, law enforcement and other departments have jointly carried out anti-counterfeiting work on cigarettes, achieving an organic combination of administrative law enforcement and criminal justice, and achieved remarkable results. However, the current situation of combating cigarette counterfeiting is still severe, and there are still many problems that need to be solved urgently in the anti-counterfeiting work. An important reason for the problem is the failure to fully apply criminal law to severely crack down on the crime of manufacturing and selling counterfeit cigarettes. In the crackdown on the production and sale of counterfeit cigarettes, many problems in the application of criminal law have not been resolved, resulting in only 29 of the counterfeit cigarette manufacturers and sellers under criminal detention being sanctioned.

Competence between the crimes involved in the production and sale of counterfeit cigarettes

The production and sale of counterfeit cigarettes mainly constitutes the following two crimes: the crime of producing and selling counterfeit and inferior products (Criminal Law Article 14 Article 10), the crime of counterfeiting registered trademarks (Article 213 of the Criminal Law). The crime of producing and selling counterfeit and inferior products refers to the behavior of producers and sellers who adulterate, adulterate, pass off fake products as genuine, pass off substandard products as qualified products, or pass off substandard products as qualified products, with a sales amount of more than 50,000 yuan. The crime of counterfeiting a registered trademark refers to the serious act of violating national trademark management regulations and using the same trademark as the registered trademark on the same product without the permission of the owner of the registered trademark. Simply looking at the definitions, the connotation and denotation of the above two crimes seem to be very different. However, in judicial practice, especially in the crackdown on the production and sale of counterfeit cigarettes, the two crimes often overlap and compete, making identification difficult.

There are overlapping situations between the two crimes, which leads to the need to distinguish and handle different situations when pursuing criminal liability. Specific to the criminal activities of manufacturing and selling counterfeit cigarettes, it should be determined as follows:

1. Only producing shredded tobacco and tobacco leaves without a registered trademark, but not making cigarettes with the registered trademark of others, should be determined For the crime of producing and selling fake and inferior products. Obviously, in this case, the perpetrator took the act of manufacturing and selling counterfeit cigarettes for a purpose, which has not infringed the trademark rights of others and only constitutes a crime stipulated in Article 140 of the Criminal Law. 2. Cigarettes with counterfeit registered trademarks are qualified products. That is to say, cigarettes with counterfeit registered trademarks are not fake and inferior products. Both raw materials, production processes and finished products comply with national quality inspection standards. In this case, the perpetrator only committed one criminal act, that is, counterfeiting someone else’s registered trademark. Therefore, if a crime is constituted, the criminal liability for the crime of counterfeiting registered trademarks can only be investigated separately. 3. Cigarettes with counterfeit registered trademarks are one of the four types of counterfeit and inferior products stipulated in Article 140 of the Criminal Law. There are currently two main views on how this situation should be dealt with if it constitutes a crime: One view is that this situation conforms to the constitutive characteristics of an implicated offender and should be severely punished. Another view is that this situation does not meet the characteristics of an implicated offender, but is consistent with the crime of producing and selling counterfeit and inferior products and the crime of counterfeiting other people's registered trademarks, and should be punished for several crimes. The author agrees with the first point of view, this kind of behavior should constitute an implicated crime. The reasons are as follows: First, the act of counterfeiting registered trademark cigarettes has the same criminal purpose as the act of producing and selling fake and inferior cigarettes. They are all for illegal profit, that is, to gain the difference between the cost price of counterfeit cigarettes and the market sales price of genuine products. Second, it contains two relatively independent criminal acts, which is another necessary condition for constituting an implicated offender. In this case, on the one hand, the perpetrator carried out the act of producing and selling counterfeit and inferior cigarettes; on the other hand, he also carried out the act of passing off other people's registered trademarks on the counterfeit and inferior cigarettes he produced and sold. Third, there is an implicated relationship between the two criminal acts included. That is, the actor has the intention to be involved subjectively, and objectively has the usual relationship between method and result.

Producing and selling counterfeit and inferior cigarettes is a consequential act, which directly reflects the criminal purpose, that is, making huge profits with counterfeit and inferior products. The act of counterfeiting registered trademarks is carried out to facilitate the realization of the criminal purpose of making huge profits with counterfeit and inferior products, which is a method act. 2. The persons are both controlled and restricted by a criminal purpose and serve a criminal purpose. In summary, such behavior should constitute an implicated offence.

Determination of the sales amount of the production and sale of counterfeit cigarettes

According to the provisions of Articles 140 and 213 of the Criminal Law, the sales amount is determined to constitute the production and sale of counterfeit and inferior products. The crime of counterfeiting a registered trademark and the sole basis for determining the seriousness of the circumstances. Therefore, how to determine the sales amount of counterfeit cigarettes has become an issue that must be studied to combat the crime of manufacturing and selling counterfeit cigarettes.

In order to solve problems in practice, on April 9, 2001, 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 about the Production and Sale of Counterfeit and Substandard Products" stipulated as follows: " "Sales amount" refers to all illegal income earned and deserved by producers and sellers after selling counterfeit and inferior products. Specifically, the amount determination in criminal activities of manufacturing and selling counterfeit cigarettes should include the following situations:

First, the illegal income earned by producers and sellers from selling counterfeit cigarettes. "Illegal income earned" refers to illegal income that has actually been obtained, including all or part of the payment received for counterfeit cigarettes that have been sold, or advance payments and deposits obtained for counterfeit cigarettes that have not yet been issued. The second is the illegal income earned by producers and sellers after selling counterfeit cigarettes. "Deserved illegal income" refers to the payment and interest that the perpetrator will receive in accordance with the agreement or agreement after selling counterfeit cigarettes. Although these payments and interest have not yet been obtained, they should be regarded as deserved illegal income. It should be emphasized here that the value of counterfeit cigarettes that have not yet been sold cannot be included in the sales amount. It is two completely different concepts from the "sales amount" and involves another proposition in criminal law - the attempted crime. It is a matter of form, and the definition of crime or non-crime is based on the value of the goods.

The determination of price is very important in calculating the sales amount. As for the price, it cannot be "high rather than low" or "low rather than high", nor can it be calculated simply by taking the middle price. Specifically, when it comes to calculating the amount of counterfeit cigarettes produced and sold, it can be determined according to the following situations: : 1. Actual sales price. If the actual sales price can be found out, in principle, the calculation will be based on that price. 2. The price of counterfeit trademark cigarettes. For cigarettes that are counterfeiting other people's registered trademarks and the actual sales price cannot be ascertained, in principle, the calculation will be based on the mid-range retail price of the cigarettes with the counterfeited registered trademark. If there is a unified price, the calculation will be based on the unified price in place where the crime occurred. 3. Valuation. For counterfeit and substandard tobacco products whose actual sales prices cannot be ascertained, designated evaluators should be entrusted in accordance with the provisions of the National Development and Reform Commission, the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security's "Measures for the Administration of Valuation of Seized, Recovered, and Confiscated Items" Institutional Valuation. 4. Price of semi-finished products. For semi-finished products of counterfeit cigarettes, such as unpackaged loose counterfeit cigarettes, etc., the price of the finished product after packaging shall be calculated.

Determination of “knowingly” in selling tobacco products with counterfeit registered trademarks

Article 214 of the Criminal Law stipulates: “Knowingly selling tobacco products with counterfeit registered trademarks” If the sales amount of goods is relatively large, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention..." "Minutes of the symposium between the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the State Tobacco Monopoly Administration on applicable legal issues in handling criminal cases such as counterfeit and shoddy tobacco products" on December 23, 2003 (hereinafter referred to as the "Minutes of the Talks") defines "knowingly" means to know or should know. And clearly listed four situations of "knowingly": first, purchasing at a price significantly lower than the market price;

Second, selling at a price significantly lower than the market price;

Third. Selling counterfeit tobacco products with registered trademarks and then transferring or destroying physical evidence or providing false certificates or false information after being discovered;

Fourth, there are other circumstances that can be deemed as knowing.

Although the "Minutes of the Talk" have made certain details on the issue of "knowledge", the objective reality is complex, and many cases are not so simple. Therefore, it is necessary to conduct in-depth research on criminal law theory and problem identification.

The author believes that "knowing" should be "subjective knowing", which includes two factors: cognition and will. In terms of understanding, sellers must realize that: 1. The trademarks used in the cigarettes they purchase and sell are trademarks that have been registered by others or are similar to them. 2. The cigarettes it purchases and sells do not have the right to use the registered trademark, which means that the manufacturer of the cigarettes is not the owner of the registered trademark or the person who has the right to use it according to law. In terms of will, based on the above-mentioned level of understanding, sellers can display two types of will: one is deliberate pursuit, knowing that the cigarettes are counterfeiting other people's registered trademarks, but still determined to purchase and sell them in pursuit of huge profits;

The second is laissez-faire, that is, realizing that the cigarettes purchased and sold may have counterfeited the registered trademarks of others, but still allowing this behavior to occur.

"Subjective knowing" can be divided into self-admitted "knowing" and presumed "knowing". Self-admitted "knowing" refers to the "knowing" confessed by the criminal suspect or defendant;

The presumed "knowing" is based on the perpetrator's age, education, occupation, current living conditions and behavior Based on various objective conditions and other circumstances at the time, it is presumed that he should have known "knowingly". "Knowing knowledge" as a seller's subjective psychological reflection must be manifested through objective circumstances such as purchase and sale. This is also the objective basis for law enforcement to infer "knowing knowledge". If there is no confession from the seller, determining whether the seller has "knowing" requires a comprehensive analysis of various factors related to his sales behavior. Generally speaking, the following factors should be considered: 1. The perpetrator’s own factors. Including the length of time the seller has been engaged in distribution activities and the quantity;

The seller’s experience level, whether the seller has similar criminal records, etc. If the perpetrator has been selling cigarettes for a long time, or has a history of being caught selling counterfeit cigarettes, these are important basis for determining his "knowing" circumstances. 2. The factors of fake cigarettes themselves. Generally speaking, counterfeit cigarettes are targeted at brand-name products that have a certain reputation, a good sales market, and high profit margins. 3. Factors in sales behavior. Including whether the purchase channel is formal, whether the procedures are complete, whether the purchase quantity and price are reasonable, how the after-sales customer response is, etc. 4. Other factors. Such as witness testimony;

Express statements from counterfeit cigarette suppliers;

Law enforcement agencies have verified this and other facts. The above factors can be recognized as long as they can be mutually confirmed as "clear knowledge".