Legal subjectivity:

(1) "Adultation or adulteration in products" stipulated in Article 1 of the "Interpretation" and Article 140 of the Criminal Law refers to The act of mixing impurities or foreign matter into products, causing the product quality to fail to comply with the quality requirements stipulated in national laws, regulations or product express quality standards, and reducing or losing the intended performance. Article 140 of the "Criminal Law" stipulates that "passing off a fake as a genuine product" refers to the act of passing off a product that does not have a certain usability as a product that has the usability. Article 140 of the "Criminal Law" stipulates that "passing off inferior products as good ones" refers to using low-grade or low-grade products to pass off as high-grade or high-grade products, or using defective or waste parts and components to pass them off as genuine or assembled products. Behavior of new products. "Substandard products" as stipulated in Article 140 of the Criminal Law refer to products that do not meet the quality requirements stipulated in Article 26, Paragraph 2, of the "Law of the People's Republic of China and Domestic Product Quality". If it is difficult to determine the above-mentioned behavior specified in this article, a product quality inspection agency stipulated in laws and administrative regulations shall be entrusted to conduct identification. (2) The "sales amount" stipulated in Article 2 of the "Interpretation" and Articles 140 and 149 of the Criminal Law refers to all the income and dues of producers and sellers after selling counterfeit and inferior products. Illegal income. If the counterfeit and shoddy products have not yet been sold, and the value of the goods reaches more than three times the sales amount stipulated in Article 140 of the Criminal Law, they will be convicted and punished for the crime of producing and selling counterfeit and shoddy products (attempted). The value of the goods is calculated based on the price of the illegally produced and sold counterfeit and shoddy products; if there is no price, it is calculated based on the market middle price of similar qualified products. If the value of goods is difficult to determine, a designated valuation agency shall be entrusted in accordance with the "Measures for the Administration of Valuation of Seized, Recovered and Confiscated Items" jointly issued by the State Planning Commission, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on April 22, 1997. Sure. If the act of producing and selling counterfeit and inferior products has been carried out for many times without processing, the sales amount or value of the counterfeit and inferior products will be calculated cumulatively. Article 141: Producing and selling counterfeit drugs. Whoever produces or sells counterfeit drugs that seriously endangers human health shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined not less than 50% but not more than twice the sales amount; Those who cause serious harm to human health shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined not less than 50% and not more than twice the sales amount; those who cause death or cause particularly serious harm to human health shall be sentenced to fixed-term imprisonment of not less than ten years and not less than Life imprisonment or death, and a fine of not less than 50% but not more than twice the sales amount, or confiscation of property. Counterfeit drugs as mentioned in this article refer to drugs and non-drugs that are counterfeit drugs and treated as counterfeit drugs in accordance with the provisions of the Drug Administration Law of the People's Republic of China. "Drug Administration Law of the People's Republic of China" (adopted at the seventh meeting of the Standing Committee of the Fifth National People's Congress on September 20, 1984, and adopted by the Standing Committee of the Ninth National People's Congress on February 28, 2001 Revised at the 20th meeting, Article 48 will be implemented from December 1, 2001, prohibiting the production (including preparation, the same below) and sale of counterfeit drugs under any of the following circumstances: 1. The drugs contain. The ingredients are inconsistent with the ingredients specified in the national drug standards; 2. Impersonating non-drugs as drugs or other drugs as such drugs. 3. Drugs that fall into any of the following circumstances will be treated as counterfeit drugs: 4. State Council Drug Supervision and Administration. The use of which is prohibited by departmental regulations; which must be approved in accordance with this Law but is produced or imported without approval, or which must be inspected in accordance with this Law but is sold without inspection; 1. Deteriorated; 2. Contaminated; 3. Used in accordance with this Law The production of raw materials that must obtain an approval number but do not have an approval number; 4. The indicated indications or functional indications exceed the prescribed scope. Or a confirmed drug inspection agency identifies that the counterfeit drugs produced and sold have any of the following circumstances, they shall be deemed to be "sufficient to seriously endanger human health" as stipulated in Article 141 of the Criminal Law: 1. Contains toxic and harmful substances exceeding the standard. Substance; 2. Does not contain the indicated active ingredients, which may delay diagnosis and treatment; 3. The indicated indications or functional indications are beyond the specified scope, which may cause delay in diagnosis and treatment; 4. Lack of the indicated effective ingredients necessary for first aid . 5. If the counterfeit drugs produced and sold cause minor injuries, serious injuries or other serious consequences after being used, they shall be deemed to have "caused serious harm to human health."

6. If the counterfeit medicines produced and sold are used, causing severe disability, serious injuries to three or more people, minor injuries to more than ten people, or other particularly serious consequences, they shall be deemed as "causing particularly serious harm to human health." Article 142: Whoever produces and sells inferior drugs, causing serious harm to human health, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined not less than 50% but not more than twice the sales amount; Consequences If the circumstances are particularly serious, the person shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be fined not less than 50% but not more than twice the sales amount, or have property confiscated. The term "substandard drugs" as mentioned in this article refers to drugs that are inferior drugs in accordance with the provisions of the "Drug Administration Law of the People's Republic of China". Article 49 of the "Drug Administration Law of the People's Republic of China" prohibits the production and sale of inferior drugs. If the content of drug ingredients does not meet the national drug standards, it is considered an inferior drug. Drugs that fall under any of the following circumstances will be treated as substandard drugs: 1. Failure to indicate the expiration date or change the expiration date; 2. Failure to indicate or change the production batch number; 3. Expiration date exceeded; 4. Direct contact with packaging materials and containers of the drug. Unapproved; 5. Adding colorants, preservatives, spices, flavorings and excipients without authorization; 6. Others that do not comply with drug standards. Article 143. Producing and selling food that does not meet hygienic standards. Whoever produces or sells food that does not meet hygienic standards, which is enough to cause serious food poisoning accidents or other serious food-borne diseases, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. , shall be concurrently or solely fined not less than 50% but not more than twice the amount of sales; if serious harm is caused to human health, shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined not less than 50% but not more than twice the amount of sales; if the consequences are particularly serious , shall be sentenced to fixed-term imprisonment of not less than seven years or life imprisonment, and shall also be fined not less than 50% but not more than twice the sales amount, or shall have property confiscated. (4) Article 4 of the "Interpretation" If, after identification by an agency determined by the health administrative department at or above the provincial level, food contains harmful bacteria or other contaminants beyond the standard that may cause serious food poisoning accidents or other serious food-borne diseases, the food shall be It is determined to be "sufficient to cause serious food poisoning accidents or other serious food-borne diseases" as stipulated in Article 143 of the Criminal Law. Food that is produced and sold that does not meet hygienic standards and is eaten, causing minor injuries, serious injuries or other serious consequences, shall be deemed to have "caused serious harm to human health." Food produced and sold that does not meet hygienic standards causes death, severe disability, serious injuries to three or more people, minor injuries to more than ten people, or other particularly serious consequences after being eaten. It should be deemed as having "particularly serious consequences". Article 144. The crime of producing and selling poisonous or harmful food. Anyone who mixes poisonous or harmful non-food raw materials into the food he produces or sells, or sells food that is knowingly mixed with toxic or harmful non-food raw materials, shall be punished. Fixed-term imprisonment of not more than five years or criminal detention, and concurrently or solely a fine of not less than 50% but not more than twice the sales amount; whoever causes serious food poisoning accidents or other serious food-borne diseases and causes serious harm to human health shall be sentenced to not less than five years but not more than ten years. The person shall be sentenced to fixed-term imprisonment of not less than 50% and not more than twice the amount of sales, and shall be fined not less than 50% but not more than twice the amount of sales; if it causes death or particularly serious harm to human health, he shall be punished in accordance with the provisions of Article 141 of this Law. (5) If the poisonous or harmful food produced and sold in Article 5 of the "Interpretation" is eaten and causes minor injuries, serious injuries or other serious consequences, it shall be deemed as "causing consequences to human health" as stipulated in Article 144 of the Criminal Law. serious harm". If the poisonous or harmful food produced or sold is eaten and causes severe disability, serious injuries to three or more people, minor injuries to more than ten people, or other particularly serious consequences, it shall be deemed as "causing particularly serious harm to human health." Article 145: It is a crime to produce and sell medical equipment that does not meet standards. It is a crime to produce medical equipment or medical hygiene materials that do not meet national standards or industry standards to protect human health, or to sell medical equipment that knowingly does not meet national standards or industry standards to protect human health. If industry standard medical devices or medical hygiene materials are enough to seriously endanger human health, they shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall be fined not less than 50% and not more than twice the sales amount; if they cause serious harm to human health, they shall be sentenced to not less than three years in prison or criminal detention. If the consequences are particularly serious, the person shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall be fined not less than 50% but not more than twice the sales amount, or have property confiscated. (6) Article 6 of the "Interpretation" that produces or sells medical devices or medical and hygienic materials that do not meet standards and causes minor injuries or other serious consequences shall be deemed to be "dangerous to human health" as stipulated in Article 145 of the Criminal Law. causing serious harm."

Producing and selling medical devices and medical and hygienic materials that do not meet standards, causing infection with viral hepatitis and other difficult-to-treat diseases, serious injuries to one or more people, minor injuries to three or more people, or other serious consequences, shall be deemed to have "particularly serious consequences." Producing and selling substandard medical devices and medical and hygienic materials that cause death, severe disability, AIDS infection, serious injuries to three or more people, minor injuries to more than ten people, or other particularly serious consequences shall be deemed to be "particularly egregious circumstances." . Medical institutions or individuals who know or should know that medical devices or medical hygiene materials do not meet national standards or industry standards for protecting human health and purchase or use them, causing serious harm to human health, shall be charged with the crime of selling medical devices that do not meet the standards. Conviction and punishment. For medical devices that do not have national standards or industry standards, registered product standards can be regarded as "industry standards to protect human health." Article 146: It is a crime to produce and sell products that do not meet safety standards. It is a crime to produce electrical appliances, pressure vessels, flammable and explosive products that do not meet the national standards and industry standards for protecting people and property, or other products that do not meet the standards for protecting people and property. Anyone who sells products that meet national or industry standards that are safe, or knowingly sells products that do not comply with national standards or industry standards that guarantee the safety of people or property, causing serious consequences, shall be sentenced to fixed-term imprisonment of not more than five years and a fine of not less than 50% of the sales amount. A fine of not more than twice the amount; if the consequences are particularly serious, the person shall be sentenced to fixed-term imprisonment of not less than five years and a fine of not less than 50% of the sales amount but not more than twice the amount. Article 147 It is a crime to produce and sell counterfeit pesticides, veterinary drugs, chemical fertilizers, and seeds. To produce fake pesticides, fake veterinary drugs, and fake chemical fertilizers, to sell pesticides, veterinary drugs, chemical fertilizers, and seeds that are known to be fake or have lost their effectiveness, or the producers . If a seller passes off unqualified pesticides, veterinary drugs, fertilizers, or seeds as qualified pesticides, veterinary drugs, fertilizers, or seeds, causing serious losses to production, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined 50 RMB for the sales amount. A fine of not less than 50% but not more than twice the amount of sales shall be imposed; whoever causes heavy losses to production shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined not less than 50% and not more than twice the amount of sales; whoever causes particularly heavy losses to production shall be sentenced to fixed-term imprisonment of not less than seven years and not less than 50% of the sales amount. Or life imprisonment, and a fine of not less than 50% but not more than twice the sales amount, or confiscation of property. (7) Article 7 of the "Interpretation" and Article 147 of the Criminal Law stipulate that the crime of producing and selling counterfeit pesticides, veterinary drugs, fertilizers, and seeds "causing greater losses to production" generally starts at 20,000 yuan. "Significant losses" generally start at 100,000 yuan; "especially heavy losses" generally start at 500,000 yuan. Article 148. It is a crime to produce and sell cosmetics that do not meet hygienic standards. Whoever produces cosmetics that do not meet hygienic standards, or sells cosmetics that knowingly do not meet hygienic standards, causing serious consequences, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. A fine of not less than 50% but not more than twice the sales amount may be imposed concurrently or individually. Article 149 The production and sale of the products listed in Articles 141 to 148 of this section does not constitute a crime stipulated in the respective articles, but if the sales amount exceeds 50,000 yuan, Convicted and punished in accordance with the provisions of Article 140 of this Section. If the production or sale of the products listed in Articles 141 to 148 of this section constitutes a crime stipulated in each of the respective articles, and at the same time constitutes a crime stipulated in Article 140 of this section, he shall be punished in accordance with More serious provisions lead to conviction and punishment. Article 150 If a unit commits the crimes stipulated in Articles 140 to 148 of this section, the unit shall be fined, and the persons directly in charge and other directly responsible persons shall be fined according to the respective regulations. The penalties specified in this article. Article 414: State agency staff who are responsible for the criminal act of producing or selling counterfeit and inferior goods, engage in malpractice for personal gain, and fail to perform their responsibilities under the law, and if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention. (8) Article 8 of the Interpretation: If state agency staff engages in malpractice for personal gain, fails to perform their duties of investigating and punishing the crime of producing and selling counterfeit and inferior goods, and falls under any of the following circumstances, it falls under the "circumstances" stipulated in Article 414 of the Criminal Law. Serious": 1. Indulging in criminal acts of producing and selling counterfeit medicines or poisonous and harmful food; 2. Indulging in criminal acts of producing, selling and counterfeit goods that may be punished with a penalty of two years or more in prison according to law; 3. Indulging in the criminal acts of producing, selling and counterfeiting of counterfeit medicines or poisonous and harmful food Units or individuals who commit crimes of producing and selling counterfeit and shoddy goods fail to perform their responsibilities for investigation; 4. Causing heavy losses to the interests of the country and the people or causing adverse effects.

"The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in the Handling of Criminal Cases concerning the Production and Sale of Counterfeit and Substandard Products" Fa Interpretation [2001] No. 10 was issued at the 1168th meeting of the Judicial Committee of the Supreme People's Court on April 5, 2001. , adopted by the 84th meeting of the Ninth Procuratorial Committee of the Supreme People's Procuratorate on March 30, 2001, is hereby announced and shall come into effect on April 10, 2001. In order to punish criminal activities of producing and selling counterfeit and shoddy goods in accordance with the law, according to the relevant provisions of the Criminal Law, several issues regarding the specific application of law in handling such cases are hereby explained as follows: Article 9 Anyone who knows or should know that others are committing the crime of producing or selling fake and shoddy goods, and Providing loans, funds, account numbers, invoices, certificates, licenses, or providing production and business premises or convenient conditions for transportation, warehousing, storage, mailing, etc., or providing counterfeit production technology, committing crimes of producing and selling counterfeit and shoddy goods** *Penalty for offenses. Article 10 Whoever commits the crime of producing or selling counterfeit and inferior goods, which at the same time constitutes other crimes such as infringement of intellectual property rights, illegal business operations, shall be convicted and punished in accordance with the provisions on heavier penalties. Article 11 If a person commits a crime stipulated in Articles 140 to 148 of the Criminal Law and resists investigation and punishment by means of violence or threats, thus constituting other crimes, he shall be punished in accordance with the provisions of concurrent punishment for multiple crimes. Article 12 Any state agency staff member who participates in the crime of producing or selling counterfeit and inferior goods shall be severely punished. Legal objectivity:

Object elements The objects infringed by this crime are the state’s trademark management system and the exclusive right to register trademarks of others. The exclusive right to use a trademark is the trademark owner’s exclusive right to use his or her registered trademark in accordance with the law. It constitutes the main content of my country’s trademark management system. my country’s Trademark Law clearly states that the exclusive right to use trademarks must be protected. Infringement of exclusive rights to trademarks may be manifested in the production or manufacture of counterfeit trademarks, or in the sale of counterfeit trademarks. In actual production, most cases involve the sale of goods that are knowingly counterfeit trademarks, and these are all infringements without exception. The exclusive right to register a trademark, and the sale of goods knowing that they are counterfeit trademarks has objectively caused a large number of counterfeit, inferior, and substandard products to be put into the market, which has had an impact on famous and high-quality products and other similar products, making it difficult for consumers to distinguish the authenticity from the counterfeit and being deceived. , in serious cases, it will pose a threat to the health and life safety of consumers, and seriously damage the legitimate interests of consumers. Selling goods with counterfeit registered trademarks, although they themselves do not produce goods with counterfeit registered trademarks, their behavior causes the goods counterfeiting other people's registered trademarks to flow directly to consumers, harming the interests of consumers, and at the same time financially supporting the counterfeit goods registered by others. Trademark criminals strengthen the psychology of criminals. Therefore, Article 38 of the Trademark Law of the People's Republic of China clearly stipulates that selling goods that are knowingly counterfeiting registered trademarks is an act that infringes on the exclusive right to use registered trademarks. one. The object of this crime is goods counterfeiting registered trademarks. Such goods are mostly counterfeit, inferior, inferior or even harmful. The so-called products that counterfeit registered trademarks must be products that use the same trademark as the registered trademark on the same product without the permission of the registered trademark owner. If the goods intentionally sold are counterfeit goods with non-registered trademarks, or are not of the same type as the goods with registered trademarks, it cannot constitute the crime of intentionally selling goods with counterfeit registered trademarks. Objective elements: The objective aspect of this crime is that the perpetrator illegally sells goods that he knows are counterfeit registered trademarks, and the sales amount is relatively large. The so-called sales refer to the act of selling goods to others by purchasing, promoting, selling or peddling, etc., including wholesale and retail, inviting people to sell on behalf of others, entrusted sales and other forms. No matter which form the perpetrator takes, as long as the sales amount reaches a relatively large amount, this crime will be committed. It is worth noting that the goods sold here should not be products produced, manufactured or processed by yourself. If the goods being sold are not counterfeiting others’ registered trademarks, but are goods without a trademark, or goods with a trademark but not a registered trademark, or goods with a registered trademark but not someone else’s but one’s own registered trademark, or goods registered by someone else. This crime will not be committed if the trademark is not a registered trademark used on the same product as the product. If the perpetrator counterfeits someone else's registered trademark on his own goods and then sells them, which constitutes a crime, he has committed two crimes respectively. There is an absorption relationship between the two crimes, and he should choose one of the felony crimes and be severely punished. However, judging from the statutory sentences of the two, the punishments for both are the same, and it is difficult to say who is lighter and who is heavier.

Considering that the act of selling goods that counterfeit someone else's registered trademark is a follow-up and extension of the act of counterfeiting a trademark, it is appropriate for those who counterfeit a trademark and then sell it to be convicted of the crime of counterfeiting a registered trademark, and the punishment should be severe and cannot be counted. And punished. If you conspire in advance with criminals who counterfeit registered trademarks, and subsequently sell goods with counterfeit trademarks on your behalf, you should also be punished for the crime of counterfeiting registered trademarks, constituting the first offender of the crime of counterfeiting registered trademarks. The sales amount of goods counterfeiting someone else's registered trademark must reach a relatively large amount to constitute a crime. Although there is an act of selling goods counterfeiting someone else's registered trademark, the sales amount is not large and does not constitute this crime. The so-called sales amount refers to all illegal income of sellers from selling goods that counterfeit other people's registered trademarks without deducting costs, taxes, etc. It is different from illegal income, which is the actual amount of profit after deducting costs, nor is it equal to the operating amount. If the perpetrator completely sells the goods that are counterfeiting other people's registered trademarks, the sales amount is the operating amount. If it is seized without selling, there will only be an operating amount but no sales amount. If there is no sales amount or if there is sales amount but the amount is not large, generally it cannot be treated as a crime, but this does not mean that it cannot absolutely be treated as a crime. If the crime is serious, if the person refuses to change despite repeated admonitions, or if the sale amount is extremely huge and the harm is serious, he should be held criminally responsible for attempted crime. However, it should be pointed out that if the goods have been sold but the purchaser has not paid the sales amount due to various reasons, it does not mean that there is no sales amount. For this to constitute a crime, it should be completed, not attempted. Subject elements The subject elements of this crime are general subjects. Both natural persons and units can constitute the subject of this crime. As far as natural persons are concerned, as long as the perpetrator has reached the age of criminal responsibility and has the ability to be criminally responsible, and intentionally sells goods with counterfeit registered trademarks, it can be constituted. If a unit commits this crime, a two-penalty system shall be implemented, and the unit shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be held criminally responsible in accordance with the provisions of this article. Subjective elements: The subjective aspect of this crime can only be manifested as intentionality, that is, knowingly selling goods with counterfeit registered trademarks to others. Negligence cannot constitute this crime. The scope of "knowingly" cannot be too narrow. "Knowingly" does not mean "certain knowledge", as long as the perpetrator should know that the goods being sold are fakes. This is because the circulation of goods with counterfeit registered trademarks is illegal, and operators often understand it implicitly during transactions and do not need to make it clear. In addition, it can also prevent some criminals from evading legal sanctions on the pretext that they do not know that the goods are counterfeit registered trademarks. In judicial practice, the main criteria for determining "knowledge" are: (1) There is evidence to prove that the perpetrator was informed that the goods sold were counterfeit registered trademarks; (2) The purchase price and quality of the goods sold were significantly lower than those of the goods being counterfeited on the market. The purchasing price and quality of goods with registered trademarks; (3) Based on the perpetrator’s own experience and knowledge, he can know that he is selling goods with counterfeit registered trademarks.