[Case Facts]: In early 2005, Yang Aigui and Liu Xizhi, who were doing business in Qiaonan Market, Changde City, Hunan Province, contacted Yu Fucheng of Yunxiao County, Fujian Province over the phone to sell counterfeit cigarettes. Yu agreed to wholesale them after an on-site inspection Fake cigarettes. After that, Yang and Liu successively invited Cai Jinhua and other five people who were doing business in the Qiaonan market to form a partnership. Each person invested 25,000 yuan. In addition to the yuan as the year-end share, everyone's sales profits belong to themselves. Yang Aigui is responsible for contacting Yu Fucheng about supply sources, organizing funds and sales, Liu Xizhi is responsible for the quality of counterfeit cigarettes, and Cai Jinhua is responsible for remittances. Counterfeit cigarettes are mainly sold to 14 regions in 7 provinces and cities including Yueyang, Changde, and Xiangxi in Hunan, western Hubei in Hubei, Qianjiang in Chongqing, and Xuzhou in Jiangsu. Nearly 20 fixed channels for the supply, transportation, and sales of counterfeit cigarettes have been formed. From March to October 2005, Yu Fucheng paid 900 yuan each for "covered white sand", 700 yuan each for "Changsha", 700 yuan each for "soft white sand", and 700 yuan each for "soft white sand" from Yunxiao County, Fujian Province to Yang Aigui, Liu Xizhi, Cai Jinhua and others. Furong" and "Soft Furong" issued 4,321 pieces of counterfeit cigarettes of the above brands at a price of 600 yuan each, with a value of 3.0076 million yuan. Yang, Liu, Cai and others used all the counterfeit cigarettes they purchased to sell them at a higher price for profit. Hu Dingxue will buy counterfeit cigarettes from Yang Aigui and sell them at a higher price, with the sales amount reaching 67,734 yuan. [Judgment Points]: The court held that the defendant Yu Fucheng and other five persons did not have tobacco wholesale and retail licenses, illegally operated counterfeit cigarette products, violated national tobacco monopoly regulations, and disrupted the order of tobacco monopoly. The circumstances were particularly serious, and their actions constituted Illegal business crime. Yu Fucheng, Yang Aigui, and Liu Xizhi played a major role in the rape crime and were the principal offenders; Cai Jinhua and Hu Dingxue played a minor role in the rape crime and were accessories. Accordingly. In the first instance, the Longshan County Court of Hunan Province sentenced the main criminals Yu Fucheng, Yang Aigui, and Liu Xizhi to 10 years' imprisonment each, and fined them 500,000 yuan each; sentenced the co-defendant Cai Jinhua to 8 years and 6 months in prison, and fined them 400,000 yuan; and sentenced the co-defendant Hu Dingxue to a fixed-term imprisonment 2 years and a fine of 50,000 yuan. After the verdict was announced, none of the defendants appealed. [Disagreement]: During the investigation, prosecution and trial of this case, judicial authorities had different opinions on the qualitative punishment for selling counterfeit cigarettes. The public security organs opened the case for investigation on suspicion of selling goods with counterfeit registered trademarks; the procuratorate found Yu Fucheng and Hu Dingxue guilty of illegal business operations, and the other defendants were prosecuted for selling counterfeit and inferior products; the judicial authorities convicted and sentenced them for the crime of illegal business operations. [Analysis]: This case is a major crime of selling counterfeit cigarettes. Due to the differences between the investigation, public prosecution and trial authorities on the characterization of the case, it took more than a year from the incident, detection to conclusion of the case. In particular, the cigarette identification and inspection report of the Hunan Provincial Tobacco Quality Supervision and Inspection Station provided by the public prosecution agency did not have the identification and inspection process and content, and there was no sufficient evidence to prove the source of the sample. The defendant did not approve it, and the court did not accept it, reflecting the lack of accuracy and efficiency in the fight against counterfeiting. Not high. Under the current severe situation of repeated bans on the production and sale of counterfeit cigarettes, it is particularly necessary to integrate and improve the ability of judicial organs to crack down on the production and sale of counterfeit cigarettes, and to unify and standardize the qualitative issues of the production and sale of counterfeit cigarettes. From the perspective of crime composition, the production and sale of counterfeit cigarettes simultaneously constitutes the crime of producing and selling fake and inferior products, the crime of counterfeiting registered trademarks or selling goods with counterfeit registered trademarks, and the crime of illegal business operations. First of all, manufacturing and selling counterfeit cigarettes constitutes the crime of producing and selling fake and inferior products. Counterfeit cigarettes refer to legal and qualified cigarette products, that is, cigarette products that counterfeit other people's registered trademarks. They are usually "passing off fake as genuine", "passing off as good" or "passing off unqualified products as qualified products". "Fake and substandard tobacco products. The Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the State Tobacco Monopoly Administration jointly issued the "Minutes of the Symposium on Applicable Legal Issues in Handling Counterfeit and Substandard Tobacco Products and Other Criminal Cases" on December 23, 2003, which stipulates that counterfeit and shoddy tobacco products have not yet been sold. If the value of goods reaches less than 150,000 yuan but less than 200,000 yuan, more than 200,000 yuan but less than 500,000 yuan, more than 500,000 yuan but less than 2 million yuan, and more than 2 million yuan, the sentencing grades stipulated in Article 140 of the "Criminal Law" respectively Conviction and punishment.

If the sales amount of counterfeit and inferior tobacco products is less than 50,000 yuan, but the value of counterfeit and inferior tobacco products that have not been sold reaches more than 150,000 yuan, they will be convicted and punished for the crime of producing and selling counterfeit and inferior products (attempted). "Secondly, the production and sale of counterfeit cigarettes constitutes the crime of counterfeiting a registered trademark or the crime of selling goods with counterfeit registered trademarks. All cigarettes are goods for which the state stipulates that a registered trademark must be registered. Article 6 of the "Trademark Law" stipulates: "Goods for which the state stipulates that a registered trademark must be used , you must apply for trademark registration. If the registration is not approved, it shall not be sold in the market. "Article 24 of the Regulations for the Implementation of the Tobacco Monopoly Law stipulates: "Cigarettes, cigars and packaged cut tobacco must use registered trademarks. "Therefore, units or individuals that produce counterfeit cigarettes must counterfeit other people's registered trademarks; units and individuals that sell counterfeit cigarettes knowing that they are counterfeit cigarettes should also know that the counterfeit cigarettes they sell are goods that counterfeit other people's registered trademarks. Therefore, Those who manufacture and sell counterfeit cigarettes with a sales amount of more than 50,000 yuan can be convicted and punished for the crime of counterfeiting registered trademarks or selling products with counterfeit registered trademarks. Third, the production and sale of counterfeit cigarettes constitutes the crime of illegal business operations in tobacco products. According to the Tobacco Monopoly Law and the Implementation Regulations of the Tobacco Monopoly Law, the establishment of a tobacco product manufacturing enterprise must be approved by the tobacco monopoly administrative department of the State Council. Obtain a tobacco monopoly production enterprise license and must strictly implement the production plan issued by the state; enterprises operating tobacco product wholesale business must be approved by the tobacco monopoly administrative department of the State Council or the provincial tobacco monopoly administrative department and obtain a tobacco monopoly wholesale enterprise license license, and must engage in the wholesale business of tobacco products within the business scope and geographical scope specified in the license; enterprises and individuals operating tobacco product retail business shall be governed by the industrial and commercial administration department of the county-level people's government in accordance with the tobacco monopoly administration at the next level. Entrusted by the department, a tobacco monopoly retail license will be issued upon review and approval, and must be purchased from a local tobacco monopoly wholesale enterprise; consignment or self-transport of tobacco monopoly products must be issued by the tobacco monopoly administrative department or an agency authorized by the tobacco monopoly administrative department. Units and individuals that manufacture and sell counterfeit cigarettes generally do not obtain a tobacco monopoly production, wholesale or retail license, or do not engage in the wholesale business of tobacco products within the business scope and geographical scope specified in the license, or They do not purchase goods from local tobacco wholesale enterprises; units and individuals that transport counterfeit cigarettes generally do not have a transportation permit. Therefore, without a corresponding tobacco monopoly license or transportation permit, engaging in the production, sales, and transportation of tobacco products falls under the " The circumstances specified in Article 225 (1) of the Criminal Law, if the circumstances are serious, constitute the crime of illegal business. In theory, the production and sale of counterfeit cigarettes constitutes an implicated crime in criminal law, and should be punished as a felony. The behavior also violated several articles of the Criminal Law, including Article 140 (the crime of producing and selling counterfeit and inferior products), Article 213 (the crime of counterfeiting registered trademarks), Article 214 (the crime of selling goods with counterfeit registered trademarks), and Article 225 (the crime of illegal business operations). It is a combination of legal provisions, and one can only choose to apply one legal provision for conviction and punishment. Article 10 of the "Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Criminal Cases of Production and Sales of Counterfeit and Substandard Products" stipulates that "implementation of production and sales." If the crime of counterfeit and inferior goods also constitutes other crimes such as infringement of intellectual property rights, illegal business operations, etc., the crime shall be convicted and punished in accordance with the provisions of heavier penalties. "Based on the "Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Article 12 of the Criminal Law", "heavier punishment" should be understood as the heavier statutory maximum penalty; if the statutory maximum penalty is the same, it means the statutory minimum penalty is heavier; if If the statutory maximum and minimum penalties for the main penalty are the same, then the additional penalty will be considered. Since the three legal articles violated by the production and sale of counterfeit cigarettes all have more than two statutory penalty ranges, when comparing statutory penalties, the specific criminal behavior should be considered. The applicable statutory sentencing ranges should be compared, and all cases of producing and selling counterfeit cigarettes should not be punished with this crime just because the statutory maximum penalty for the crime of producing and selling counterfeit and inferior products stipulated in Article 140 of the Criminal Law is life imprisonment.

Within the sentencing range where the main penalty is fixed-term imprisonment, the maximum penalty for the illegal business crime in the two legal sentencing ranges is 5 years and 15 years respectively. Compared with the other two crimes of manufacturing and selling counterfeit cigarettes, they are "heavier penalties." Therefore, the manufacture and sale of counterfeit cigarettes should generally be convicted and sentenced according to the illegal business crime stipulated in Article 225 of the Criminal Law, except for extremely serious and vicious cases that require life imprisonment and the provisions of Article 140 of the Criminal Law. At the operational level, for most cases of manufacturing and selling counterfeit cigarettes, treating them as illegal business crimes will help improve the efficiency of anti-counterfeiting and save judicial resources. Since Article 140 of the Criminal Law stipulates that the crime of producing and selling counterfeit and inferior products can only be targeted at counterfeit and inferior products, it does not include products that are only "fake" but not "inferior". Therefore, in order to crack down on the production and sale of counterfeit cigarettes, it is first necessary to confirm that counterfeit cigarettes are "fake and inferior products". Tobacco product quality supervision and inspection agencies at or above the provincial level authorized by the national tobacco monopoly administrative department shall, in accordance with the counterfeit regulations formulated by the State Tobacco Monopoly Administration, The management measures for identification of counterfeit and shoddy cigarettes, the identification and inspection procedures for counterfeit and shoddy cigarettes and other relevant regulations shall be followed for identification. At the same time, this crime uses the sales amount as the basis for conviction and punishment. It is impossible to evaluate the perpetrator's infringement of the exclusive rights of others' registered trademarks, nor the perpetrator's illegal business activities without permission. It is also possible to mistakenly evaluate the completed illegal business activities as Attempted criminal act of producing and selling counterfeit and inferior products. The crime of illegal business operations stipulated in Article 225 of the Criminal Law uses "circumstances" as the criterion for conviction and punishment. The "Minutes of Cases of Counterfeit and Substandard Tobacco Products" have clarified that without the permission of the tobacco monopoly administrative department, there is no production license, wholesale license, or retail license, and the production, wholesale, and retail of tobacco products, the individual's illegal business amount is more than 50,000 yuan or the amount of illegal income exceeds 10,000 yuan, he shall be convicted and punished in accordance with the provisions of Article 225 of the Criminal Law. Moreover, both the object of illegal business (counterfeit cigarettes) and the method (counterfeiting someone else's registered trademark) are illegal, which are important factors in judging whether the circumstances are serious. Therefore, convicting and punishing cases of counterfeit cigarette production and sales as illegal business crimes can more accurately and comprehensively evaluate the social harm of the behavior, and facilitate the verification of the perpetrator's business qualifications and illegal business amount. To sum up, the author believes that the conviction and punishment of illegal business operations in this case is correct and appropriate, and it is worthy of reference by various judicial agencies in the work of combating cigarette counterfeiting.