20 10-03-25 Fa Shi [2010] No.7
(Adopted at the 148 1 meeting of the Judicial Committee of the Supreme People's Court on February 28th, 2009 and at the 29th meeting of the 11th Procuratorial Committee of the Supreme People's Procuratorate on February 4th, 2009).
In order to maintain the order of the socialist market economy and punish crimes such as illegal production and sale of tobacco monopoly products according to law, according to the relevant provisions of the Criminal Law, some issues concerning the specific application of law in handling such criminal cases are explained as follows:
Article 1 Whoever produces and sells fake and inferior cigarettes, cigars and other tobacco monopoly products with a sales amount of more than 50,000 yuan shall be convicted and punished for the crime of producing and selling fake and inferior products in accordance with the provisions of Article 140 of the Criminal Law.
Without the permission of the registered trademark owner of tobacco monopoly products such as cigarettes and cigars, if the circumstances are serious, he shall be convicted and punished for the crime of counterfeiting registered trademarks in accordance with the provisions of Article 213 of the Criminal Law.
Whoever knowingly sells cigarettes, cigars and other tobacco monopoly commodities with counterfeit registered trademarks of others, and the sales amount is relatively large, shall be convicted and punished for the crime of selling commodities with counterfeit registered trademarks in accordance with the provisions of Article 214 of the Criminal Law.
Whoever forges or makes without authorization the registered trademark marks of other people's cigarettes and cigars or sells the forged or made without authorization, if the circumstances are serious, shall be convicted and punished for the crime of illegally manufacturing or selling the illegally manufactured registered trademark marks in accordance with the provisions of Article 215 of the Criminal Law.
Whoever, in violation of the state regulations on tobacco monopoly administration, illegally deals in tobacco monopoly products without the permission of the tobacco monopoly administrative department, without obtaining the license of tobacco monopoly production enterprise, tobacco monopoly wholesale enterprise, tobacco monopoly franchise enterprise and tobacco monopoly retail license, if the circumstances are serious, shall be convicted and punished for the crime of illegal business in accordance with the provisions of Article 225 of the Criminal Law.
Article 2 Where counterfeit and shoddy cigarettes, cigars and other tobacco monopoly products have not been sold, and the value of the goods reaches more than three times the threshold for conviction of sales amount stipulated in Article 140 of the Criminal Law, or the sales amount does not reach 50,000 yuan, but the total value with unsold goods reaches more than 150,000 yuan, the crime of producing and selling counterfeit and shoddy products (attempted) shall be convicted and punished.
If the amount of sales and the value of unsold goods reach different legal punishment ranges or both reach the same legal punishment range, a heavier punishment shall be given as appropriate within the legal punishment range with heavier punishment.
If the sales price of seized unsold counterfeit cigarettes and cigars can be ascertained, it shall be calculated according to the actual sales price. If the actual sales price cannot be ascertained, if there is a brand, it shall be calculated according to the retail price issued by the provincial tobacco monopoly administration department where the brand cigarettes and cigars are seized; If there is no brand, it shall be calculated according to the average retail price of cigarettes in the previous year issued by the provincial tobacco monopoly administrative department at the place where it was seized.
Article 3 Whoever illegally deals in tobacco monopoly commodities under any of the following circumstances shall be deemed as "serious" as stipulated in Article 225 of the Criminal Law:
(a) the amount of illegal business is more than fifty thousand yuan, or the amount of illegal income is more than twenty thousand yuan;
(2) Illegally handling more than 200,000 cigarettes;
(three) more than two times in three years due to illegal tobacco monopoly products by administrative punishment, illegal tobacco monopoly products in the amount of more than 30 thousand yuan.
Under any of the following circumstances, it shall be deemed as "the circumstances are particularly serious" as stipulated in Article 225 of the Criminal Law:
(a) the amount of illegal business is more than 250 thousand yuan, or the amount of illegal income is more than100 thousand yuan;
(2) Illegally handling more than one million cigarettes.
Article 4 If the selling or purchasing price of tobacco monopoly products can be found out illegally, the illegal business amount shall be calculated according to the selling or purchasing price. If the sales price or purchase price cannot be determined, the illegal business amount shall be calculated according to the following methods:
(a) seized cigarettes and cigars, if there is a brand, shall be calculated according to the retail price issued by the provincial tobacco monopoly administration department where the brand cigarettes and cigars are seized; If there is no brand, it shall be calculated according to the average retail price of cigarettes in the previous year issued by the provincial tobacco monopoly administrative department at the place where it was seized;
(two) the price of the seized redried flue-cured tobacco leaves and tobacco leaves shall be calculated according to the average benchmark price of flue-cured tobacco allocation in the previous year issued by the provincial tobacco monopoly administrative department at the place of seizure;
(3) The price of cut tobacco shall be calculated at 1.5 times of the price calculation standard specified in item (2);
(four) the price of cigarette accessories, if there is a brand, shall be calculated according to the price issued by the provincial tobacco monopoly administration department where the brand accessories are seized; If there is no brand, it shall be calculated according to the average price of such cigarette accessories required by the tobacco industry in the previous year issued by the provincial tobacco monopoly administrative department at the place where it was seized;
(five) the price of illegal production, sale and purchase of special tobacco machinery shall be calculated according to the national guidance price catalogue of special tobacco machinery products issued by the department of tobacco monopoly administration in the State Council; If there is no such special tobacco machinery in the catalogue, it shall be calculated according to the average price of similar special tobacco machinery in the catalogue issued by the tobacco monopoly administrative department at or above the provincial level.
Article 5 If an actor commits the crime of illegally producing and selling tobacco monopoly products, which also constitutes the crime of producing and selling fake and inferior products, the crime of infringing intellectual property rights and the crime of illegal business operation, he shall be convicted and punished in accordance with the provisions of heavier punishment.
Article 6 Whoever knowingly provides others with loans, funds, account numbers, invoices, certificates and licenses, or provides others with convenient conditions such as production and business premises, equipment, transportation, warehousing, storage, mailing, import and export agency, or provides others with production technology and cigarette formula, shall be investigated for criminal responsibility according to the crime of * * *.
Article 7 If it is necessary to identify fake and shoddy tobacco monopoly products in handling criminal cases such as illegal production and sale of tobacco monopoly products, it shall be entrusted to the product quality supervision and administration department of the State Council and the tobacco quality inspection institution designated by the product quality supervision and administration department of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government.
Article 8 Whoever obstructs tobacco monopoly law enforcement officers from performing their duties according to law by violence or threat, which constitutes a crime, shall be investigated for criminal responsibility for the crime of obstructing official duties.
Inciting the masses to violently resist the enforcement of the tobacco monopoly law, which constitutes a crime, shall be investigated for criminal responsibility for the crime of inciting violence to resist law enforcement.
Article 9 The term "tobacco monopoly products" as mentioned in this Interpretation refers to cigarettes, cigars, cut tobacco, redried tobacco leaves, tobacco leaves, cigarette paper, filter rods, cigarette tows and special machinery for tobacco.
The cigarette accessories mentioned in this interpretation refer to cigarette paper, filter rods and cigarette tows.
The term "special machinery for tobacco" as mentioned in this interpretation refers to the machinery and equipment that can complete one or more specific processing procedures and operate independently in the Catalogue of Special Machinery for Tobacco published by the Department of Tobacco Monopoly Administration of the State Council, and is used to produce and process cigarettes, cigars, cut tobacco, redried tobacco leaves, tobacco leaves, cigarette paper, filter rods and cigarette tows.
The special machinery similar to tobacco mentioned in this interpretation refers to the machinery and equipment that can complete the same processing procedures in the production and processing of cigarettes, cigars, shredded tobacco, redried tobacco leaves, tobacco leaves, cigarette paper, filter rods and cigarette tows.