Keywords: Crime of counterfeiting registered trademarks, crime of selling goods with counterfeit registered trademarks, crime of producing and selling fake and inferior products, crime of illegal business operation, amount of counterfeit cigarettes sold

The production and sale of counterfeit cigarettes has disrupted tobacco production Business order, infringement of intellectual property rights, and harm to people's physical and mental health. Tobacco monopoly departments and judicial authorities have always severely cracked down on the production and sale of counterfeit cigarettes. However, because tobacco cases involve the crimes of producing and selling counterfeit and inferior products, crimes of infringement of intellectual property rights and crimes of illegal business operations, as well as the identification of attempted crimes, the distinction of principals and accomplices, and the determination of the amount of participation, etc., it is often difficult to handle such cases in judicial practice. . To this end, the Supreme People's Court and the High People's Procuratorate have issued several judicial interpretations on tobacco-related cases. However, when citing judicial interpretations, the public, prosecutorial and judicial organs also have many divergent opinions. To this end, the author takes several tobacco cases handled as examples and combines the provisions of judicial interpretations to discuss some difficult issues in tobacco cases.

1. The issue of determining the amount of illegal business operations in tobacco cases

When handling tobacco-related cases, the amount of illegal business operations must first be determined. Judicial interpretations stipulate that conviction and sentencing are generally based on the amount of sales or illegal income. The amount of illegal income is usually the profit earned by criminals after deducting costs from the sales amount. However, the profit flexibility is very large and difficult to ascertain. The amount of illegal business is usually determined by the sales amount. For products that have been produced and successfully sold, the illegal business amount is expressed as the sales amount; for products that have not been sold and are seized during the production or transportation process, the illegal business amount is expressed as the value of the goods.

(1) Determination of sales amount

1. Determine the sales amount based on the evidence materials of the entire case. For tobacco products that have been sold, the price and quantity cannot be determined solely based on the suspect's confession. The next party who purchased the products must also be verified and the testimony of the next seller should be used to corroborate the suspect's confession. If the two are inconsistent, the judgment will be in favor of The defendant's principle is low. If there is only the defendant's confession and the next step cannot be verified, other evidence materials in the case must be combined to determine whether the defendant's confession is true. For example, when Wang XX sells counterfeit cigarettes, all his counterfeit cigarettes are sold to other places. After the incident, in order to evade investigation, Wang XX threw away his mobile phone. The investigation agency was unable to find the next owner. However, Wang XX confessed that all the proceeds from the sales were collected through bank transfers. The investigation agency obtained the bank transfer voucher. The authenticity of his confession was confirmed. Based on this, we determined the sales amount based on Wang XX’s confession.

2. Pay attention to the collection of documentary evidence. The record book recording production and sales quantities, prices, etc. is an important documentary evidence for determining the sales amount, and such evidence must be fixed in a timely manner. In addition, suspects and witnesses must be interrogated, the authenticity of the contents recorded in the sales record book must be verified, and the variety, quantity, and unit price of counterfeit cigarettes sold or purchased must be verified clearly. For example, in the case of Liu XX and Huang XX producing counterfeit cigarettes that we handled, Huang XX had detailed records of the sales unit price, quantity, and variety of each batch of counterfeit cigarettes. The public security agency found this record book from his home and seized it. Later, both Huang ×× and Liu ×× confessed to the authenticity of the recorded contents. We identified the suspect’s identity based on the variety, quantity, and unit price of counterfeit cigarettes recorded in the record book. Sales amount.

(2) Determination of the value of the goods

For counterfeit cigarettes seized at the production site or during transportation, there is no time to sell them, and there is no sales amount. The judicial interpretation stipulates that in this case, the conviction and punishment shall be based on the value of the goods, and shall be treated as an attempted crime. How to determine the value of goods, the judicial interpretation stipulates three methods: ① If the sales price can be ascertained, the calculation shall be based on the actual sales price; ② If the actual sales price cannot be ascertained and there is a brand, the calculation shall be based on the sales price issued by the provincial tobacco monopoly administrative department. Calculation of retail price; ③ For unbranded products, calculation shall be based on the average retail price of cigarettes in the previous year issued by the provincial tobacco monopoly administrative department.

What needs to be noted here is that if the sales price is only the suspect’s confession and there is no other evidence to corroborate the suspect’s confession, whether the suspect’s confession should be used to determine the sales price.

Our point of view is that if the suspect’s confession is reasonable, for example, if it is higher than the purchase price, there is a balance after excluding transportation costs, and combined with the price of counterfeit cigarettes at the sales destination, etc., then the suspect’s confession will be used to determine that the sales price meets the The objective facts of the case, and the suspect’s confession are also legal types of evidence. Try not to calculate based on the retail price determined by the tobacco department, because there is a big gap between the two. For example, for fake Yunyan, the price of fake cigarettes is 70 yuan a piece, while the price of real cigarettes is more than 200 yuan a piece. Counting it as a crime, counterfeit cigarettes do not constitute a crime. The result is that the sale of counterfeit cigarettes does not constitute a crime, but the counterfeit cigarettes that have not yet been sold still constitute a crime. The small social harm constitutes a crime, and the high social harm does not constitute a crime. Obviously contrary to the original intention of the legislation.

2. The problem of determining the amount of crime committed by the principal and the accomplice in tobacco cases

In the same criminal case of producing counterfeit cigarettes, if the semi-finished products, finished products, raw materials, and tobacco-specific materials at the cigarette making site When machinery is seized, the public security organs will generally entrust an appraisal agency to conduct appraisals of all the items involved. It is necessary to discuss how to use this identification conclusion to determine the responsibility of each suspect in the same crime.

In the counterfeit cigarette cases we handle, the boss and the workers employed by him are usually seized. For example, in the counterfeit cigarette case in Tongji Town, Pengzhou City, which was seized by the public security organs, 9 counterfeiters were intercepted at the scene. workers; in the counterfeit cigarette case in Zhihe Town, Pengzhou City, 7 people, including the boss, were detained; in the counterfeit cigarette case in Shifang, 9 people, including the boss, were detained . Usually, the boss and the worker commit the same crime. The worker is hired to participate in labor and only earns a monthly salary. He plays a small role in the crime and is generally regarded as an accessory. Small workers are generally divided into two situations. One is involved in the entire production process, from the beginning of fake cigarette production until being seized, and never leaves in the middle. For example, in the case of Zhang ×× making counterfeit cigarettes, the hired workers were from Anhui Province and participated in the entire cigarette making process. Another situation is that the small workers are migrant workers found nearby by the boss. They do not receive wages on a monthly basis, but on a piece-rate basis. The boss pays each small worker according to his daily workload, and the small workers do not participate in counterfeit cigarettes every day. They work at home during the busy farming season and come to help with the production for a few days during the slack farming season. This is the case for the laborer involved in the Shifang Liu ×× counterfeit cigarette case. The boss Liu ×× hired nearby rural women who were unemployed at home to help wrap cigarettes, and each cigarette was paid at 5 cents or 6 cents.

The boss and other organizers or active participants in the production of counterfeit cigarettes should be identified as the principal offender. The principal offender shall bear criminal responsibility for the entire crime. The amount of the seized items involved in the case after identification shall be determined as the principal offender’s crime amount. .

A petty worker is an accessory to the same crime and can only bear criminal responsibility for the crime in which he participated. In the attempted criminal case of counterfeit cigarettes, the appraisal agency appraised the prices of all items seized related to counterfeit cigarettes. When someone determines the amount of a crime, it is inappropriate to directly use the price appraisal results to determine the amount of the crime. Under normal circumstances, the value of special tobacco machinery should be deducted, and the amount of crime committed by a small worker should be determined based on the seizure of cigarettes, semi-finished products, and counterfeit raw materials. Because the tobacco-specific machinery was purchased by the boss for use by employees, this amount should not be counted as the amount of the same crime. Because the small workers did not participate in the purchase of tobacco machinery. Careful analysis of the judicial interpretation also stipulates the criminalization of the purchase, sale, and production of tobacco-specific machinery, but does not stipulate the criminalization of the use of tobacco machinery. This is the reason. For example, in the counterfeiting case involving Zhang XX and other nine people, all those arrested were small-time workers, and the organizer of counterfeit cigarette production is at large. The appraisal conclusion was based on the seized counterfeit raw materials, semi-finished products, seized cigarettes and tobacco machinery. The total value was 330,000 yuan, and one cigarette machine was worth 50,000 yuan. After determining the criminal amount of the nine workers At that time, the amount of the cigarette machine was deducted from the total amount, and the nine workers were charged with attempted crime of 280,000 yuan, and they were also identified as accessories.

3. The problem of imagining competing criminals to choose one felony to deal with

In tobacco-related cases, after determining the amount of illegal business, based on the amount of illegal business, compare the crimes of producing and selling fake and inferior products, The crime of illegal business operations, the crime of counterfeiting registered trademarks, or the crime of selling goods with counterfeit registered trademarks shall be punished as a felony.

In the case where there is only the value of the goods, the crime shall be convicted and punished according to the attempted crime form of each of the above crimes. What needs to be discussed is that the judicial interpretation of the crime of producing, selling, and selling counterfeit and inferior products stipulates that there is an attempted form, and the value of the goods must be three times the completed amount. The judicial interpretation of the standard crime of counterfeit registration also clearly stipulates that there is an attempt, and the amount is not specifically stipulated. It is determined based on the starting point for conviction of the completed crime. However, the judicial interpretation does not clearly stipulate whether the crime of illegal business operations has the form of attempt. We believe that the crime of illegal business operations should also have the form of attempted crime. The reason is: the object of protection for the crime of illegal business operations is the country’s tobacco monopoly system. my country implements a license system for tobacco, and operating tobacco without a license constitutes this crime. However, when there is only the value of the goods, the suspect purchased the raw materials, purchased the cigarette machine to prepare for production, or was intercepted during the production process. There was no finished product for external sale, and there was no violation of the country's tobacco monopoly system. However, the suspect has already started to implement it. If a crime fails due to reasons other than the will, it is more objective to identify it as an attempt. There is no clear legal provision on whether the attempted amount is determined based on the completed amount, or how many times the completed amount is, but the amount can be determined and punished by referring to the method for determining the amount in the crime of counterfeiting registered trademarks.

4. The issue of conviction for the quantity of counterfeit cigarettes

The judicial interpretation stipulates that illegal operation of more than 200,000 cigarettes is a serious crime of illegal operation, and illegal operation of 1 million cigarettes The above are particularly serious illegal business crimes. This refers to two hundred thousand or one million cigarettes. If the suspect deals in cigars, the quantity specified in this explanation cannot be used to determine the crime. The reason is: cigarettes and cigars are different types of cigarettes. Cigarettes are tobacco products rolled into strips using cigarette paper, also known as paper cigarettes, cigarettes and cigarette rolls. Cigars belong to a category of cigarettes and are pure natural tobacco products rolled from raw tobacco leaves that have been dried, fermented and aged. The judicial interpretation lists cigarettes and cigars side by side, such as "Producing and selling counterfeit cigarettes, cigars and other tobacco specialty products with a sales amount of more than 50,000 yuan, in accordance with the provisions of Article 140 of the Criminal Law , convicted and punished for the crime of producing and selling counterfeit and inferior products." Therefore, the quantity of cigarettes can be used to determine the crime of illegal business operations, but the quantity of cigars cannot be used as the standard for conviction and sentencing.

5. Jurisdictional issues after changing the characterization of intellectual property infringement cases in tobacco-related cases

If the public security organ obtains jurisdiction over a certain case through designated jurisdiction by the superior public security organ, the public security organ The counterfeit cigarette case is transferred for prosecution as a case of intellectual property infringement. After review, the procuratorate considers that the crime of illegal business should be punished according to the alternative felony penalty. In this case, the procuratorate prosecutes the crime of illegal business. Does the court have jurisdiction? Because the judicial interpretation stipulates that in cases of intellectual property infringement, after the public security organ obtains jurisdiction over a certain case through designated jurisdiction, the procuratorate and court where the public security organ is located will naturally obtain jurisdiction and may no longer designate jurisdiction. So after the case's characterization is changed, does the judicial authority where the public security agency is located have jurisdiction? The answer is yes. Careful analysis of the judicial interpretation revealed that the stipulation here is about the case, not the crime. Even though the prosecution changed the crime, it is still a case of infringement of intellectual property rights, because tobacco-related cases often infringe multiple objects protected by the law, and conviction is only a part of the case. The handling method will not change the nature of the case. If the public security organs have jurisdiction over such tobacco-related cases, the judicial organs where they are located will certainly have jurisdiction and may no longer be designated.