Goods that counterfeit someone else’s registered trademark are also fake goods, but they are not the same kind of goods as the goods that the counterfeited registered trademark really represents.

For example, in July 1993, Wang and Shi went to Li's private winery, ordered 100 pieces of counterfeit "Linhe Liangye" wine from Li, and gave Li 2,000 yuan in cash as Money to buy alcohol. In order to produce the wine, Li and Wang respectively prepared the "Henan Province Linhe Winery 1993.4.12" production date stamp and the "Linhe Liangye" wine packaging printing plate, and *** both purchased and printed the "Linhe More than 100 packaging boxes of "Liangye" were purchased, and 2,000 sets of counterfeit "Linhe Liangye" trademarks were purchased. Later, Li purchased 4 barrels of methanol (1,200 kilograms), blended the methanol with well water and a small amount of essence at his private winery, and hired young people from the village and Wang to package 45 pieces of counterfeit "Linhe Liangye". After the wine was sold, it was purchased and consumed by local people, causing severe methanol poisoning to 16 people, including 4 deaths, 1 blindness, constituting serious injuries, and 1 loss of vision, constituting minor injuries (more severe).

In this case, Li added methanol to well water and a small amount of essence to blend liquor, and sold it as "Linhe Liangye", causing serious consequences of death and injury to many people. His behavior constituted the production and sale of toxic food. Guilty. However, in the process of producing and selling toxic food, Li counterfeited the registered trademark of "Linhe Liangye". Does his behavior also constitute the crime of counterfeiting a registered trademark? The author believes that the answer is no. Because according to Article 213 of the Criminal Law, the crime of counterfeiting a registered trademark refers to the serious act of using the same trademark as the registered trademark on the same product without the permission of the owner of the registered trademark. The "same kind of goods" here has a specific meaning and is a legal term for trademark, specifically referring to the detailed classification of all goods according to the three levels of category, group and species according to the "Commodity Classification (Group) Table" promulgated by our country. Products of the same category in the category. And the perpetrator in this case was blending it with methanol? "Liquor" uses someone else's registered trademark "Linhe Liangye". The two products obviously cannot be regarded as "the same product". To be precise, "Linhe Liangye" is wine, and the so-called "Linhe Liangye" blended with methanol Liquor cannot actually be called wine, but is just a poisonous liquid. For this, the criminal responsibility for producing and selling counterfeit goods can only be investigated separately.

(3) Counterfeiting other people’s registered trademarks. The product is also a counterfeit product, and the product is the same product as the product that the registered trademark is counterfeited. That is, the perpetrator uses the registered trademark of another person for the same type of product on the counterfeit product he produces and sells. < /p>

There are currently two main views on how to deal with such a situation that constitutes a crime: one view is that this situation conforms to the constitutive characteristics of an implicated offender, while some people believe that this situation is in line with the characteristics of an implicated offender. It is advocated that the traditional "one serious punishment" should still be followed. Some people believe that our country's current legislation has broken through the theoretical model of punishing implicated offenders with one serious punishment. Therefore, in this case, several crimes should be punished together.

Another point of view is that this situation does not meet the characteristics of the involved offenders, but is consistent with the crime of producing and selling counterfeit goods and the crime of counterfeiting other people's registered trademarks. Several crimes should be punished at the same time. The reasons are:

First, this situation does not meet the prerequisites of a certain criminal purpose, as the direct and close connection between the criminal purpose and the resultant behavior cannot be achieved by the involved offender. There are two behaviors in an implicated crime, namely method behavior and purpose behavior or purpose behavior and result behavior. No matter which pair of behaviors they are, they must be for the same criminal purpose. This is a prerequisite for constituting an implicated crime. For example, criminals forge seals on official documents in order to defraud banks. This is a typical form of implicated crime. The criminal act of forging official seals is to achieve the criminal purpose of defrauding money. Therefore, in the entire crime, the perpetrator There is only one criminal purpose, which is to defraud money. However, the act of counterfeiting the registered trademark of others for the same type of goods on the fake and inferior products produced by oneself has two completely different criminal purposes, namely, the purpose of producing and selling fake and inferior products to make huge profits and counterfeiting others. The purpose of registering trademarks is to make illegal profits, but the illegal benefits obtained are different.

The illegal benefits obtained by the former are the difference between the cost price of counterfeit and inferior products and the market sales price of genuine products, while the illegal benefits obtained by the latter are caused by the price difference and market sales volume between the original products (qualified products) and the counterfeited products. Profit, the two cannot be confused. Second, this situation does not meet the requirement that there must be a direct and close connection between the purpose of the crime implicated and the method or resultant behavior. The so-called direct close connection means that the method used in the implicated crime must be the method necessary to achieve the criminal purpose. If this method is not used, the realization of the criminal purpose will inevitably lead to the occurrence of this result. In the above situation, if counterfeiting registered trademarks to illegally make profits is used as a criminal purpose, then producing and selling fake and inferior products is a method act, but using counterfeit and inferior products as a carrier of counterfeiting registered trademarks is not a necessary means to achieve the criminal purpose. The perpetrator is completely Instead of using fake and shoddy products, you can choose other qualified products of the same type as a carrier to achieve the criminal purpose of illegally making profits by counterfeiting registered trademarks. Therefore, there is no direct close connection between the method of producing and selling fake and shoddy products and the criminal purpose of illegally making profits by counterfeiting registered trademarks. . If the production and sale of counterfeit and inferior products to illegally make profits is a criminal purpose, counterfeiting registered trademarks will be the result. But in fact, the realization of the criminal purpose of illegally making profits by producing and selling counterfeit and inferior products does not necessarily lead to the crime of counterfeiting registered trademarks. Producers and sellers can completely sell counterfeit and inferior products as genuine products without counterfeiting registered trademarks to achieve the criminal purpose. To sum up, the act of passing off other people’s registered trademarks for the same type of goods on the counterfeit products produced by oneself is not an implicated crime. This type of behavior is essentially composed of two behaviors with different criminal purposes and infringement of different criminal objects that have independent criminal elements. It is in line with legislative principles that several crimes should be punished concurrently.

①The author agrees with the first point of view above. That is, if the act of counterfeiting the registered trademark of others for the same type of goods on the counterfeit products produced and sold by oneself constitutes a crime, it shall be treated as an implicated offender. This is because: first, this situation has the same criminal purpose. The so-called criminal purpose here is not in an arithmetic sense, but in the ultimate unity of one criminal purpose. From a microscopic perspective, among the several acts of the implicated offender, the original crime has a criminal purpose, and other criminal acts sometimes also have a criminal purpose, and each may have a different criminal purpose. For example, someone who steals a boat and crosses the border should be considered an implicated offender. Here, the purpose act (the act of this crime) is to cross the national border illegally, with the criminal purpose of illegally crossing the national border; the method act is to steal a ship, with the criminal purpose of illegally obtaining the right to use the ship. However, the ultimate goal of these two behaviors is only one, which is to cross the border secretly. In the same way, in the act of producing and selling counterfeit and inferior products and counterfeiting registered trademarks, the production and sale of counterfeit and inferior products can be regarded as this crime. The purpose of the crime is to obtain the difference between the cost price of counterfeit and inferior products and the market sales price of genuine products; counterfeiting registered trademarks The behavior can be regarded as methodical behavior, and its criminal purpose is to obtain the price difference between the original product (qualified product) and the counterfeit product and the profits brought by the increase in market sales. However, the ultimate purpose of these two behaviors is only one - —Making huge profits.

Second, this situation includes two relatively independent behaviors that endanger society, which is another necessary condition for constituting an implicated offender. In this case, on the one hand, the perpetrator committed the act of producing and selling counterfeit and shoddy goods; on the other hand, he also committed the act of passing off other people's registered trademarks on the counterfeit and shoddy goods he produced and sold.

Thirdly, there is an implicated relationship between the two harmful acts involved in this situation, which is the third element for constituting an implicated crime. In the second view mentioned above, the implicated relationship is understood as a direct close connection, and it is believed that "the so-called direct close connection means that the method used in the implicated crime must be the method necessary to achieve the purpose of the crime. If this method is not used, method, the criminal purpose cannot be realized. The direct and close connection between the criminal purpose and the resulting behavior means that the realization of a certain criminal purpose will inevitably lead to the occurrence of such results. "The author believes that this view is worthy of discussion. In fact, even in the behavior of forging official documents and seals in order to defraud banks, which is considered by those who agree with this view to be a "typical form of implicated crime", the method and behavior of forging official documents and seals is not necessary to defraud banks of money. method. The so-called implicated relationship should refer to the internal connection between the method and the purpose or the result and the purpose between the several socially harmful behaviors performed by the actor, that is, the actor's several socially harmful behaviors are respectively manifested as purpose behavior, method behavior or result. behaviors and interdependence to form an organic whole.

Generally speaking, the implicated relationship is reflected in the master-slave relationship between several implicated crimes. The implicated offender's criminal behavior directly reflects the purpose of the crime and is the principal act; while the other's criminal behavior is attached to the criminal behavior and is an accessory act. According to the way in which the other's crime is attached to the crime's conduct, the accessory conduct can be further divided into method accessory conduct and consequential accessory conduct. The former is carried out to facilitate the realization of the criminal purpose of this crime; the latter is carried out to maintain and strengthen the criminal purpose of this crime that has been realized. The alleged offender's numerical behavior has an internal consistency, and the concentrated expression of this internal consistency is the master-slave relationship between his numerical behavior. It can be said that the master-slave relationship between digital behaviors is the basic core of its internal consistency. It determines that digital behaviors are dominated and restricted by a criminal purpose, and in turn serve a criminal purpose. ① In the act of producing and selling counterfeit products and counterfeiting other people’s registered trademarks, the two acts have such an implicated relationship. The crime of producing and selling counterfeit and shoddy products is the main act, which directly reflects the criminal purpose, that is, making huge profits with fake and shoddy products. The act of counterfeiting registered trademarks is carried out to facilitate the realization of the criminal purpose of making huge profits with fake and shoddy products, and is a method act. Both are dominated and restricted by a criminal purpose and serve a criminal purpose.

As for the punishment of implicated offenders, the author believes that different situations should be distinguished and different principles should be applied. It is one-sided to absolutely use "cut off from the first serious crime" or punish several crimes together. If the criminal law stipulates that a certain implicated offender shall be punished with several crimes, the multiple crimes shall be punished together (for example, Article 157, paragraph 2, of the Criminal Law stipulates that those who resist anti-smuggling by violence or threats shall be charged with smuggling and Article 277 of this law shall The crime of obstructing state agency staff from performing their duties in accordance with the law shall be punished in accordance with the provisions of concurrent punishment for multiple crimes); if the criminal law stipulates that a certain involved offender shall be punished from the first serious offense, he shall be punished from the first serious offense (such as Article 399, paragraph 2, of the current Criminal Law) , if a judicial staff member embezzles money and bends the law, commits the crime of bending the law for personal gain or bending the law, and at the same time constitutes the crime of accepting bribes, he shall be convicted and punished in accordance with the provisions on heavier penalties). In the absence of special provisions in the criminal law, implicated offenders should be sentenced to the first serious sentence. Therefore, for those who commit the crime of producing and selling counterfeit and substandard goods and also constitute the crime of counterfeiting registered trademarks, since there are no special provisions in the criminal law, the principle of heavier punishment should be applied.

①Xu Liping: "Qualitative Thoughts on Producing Fake and Substandard Products and Counterfeiting Registered Trademarks", published in "People's Procuratorate" Issue 5, 1996.

②Wu Zhenxing: "Theory of Morphology of Crime Numbers", China Procuratorial Press, 1st edition, April 1996, pp. 283-284