Legal provisions:

 

Article 140th[producing, selling fake or substandard products] producers, sellers in adulterates products, fake, shoddy, or with unqualified products as qualified products, sales amount of fifty thousand yuan less than two hundred thousand yuan, less than two yearsFixed-term imprisonmentOrCriminal detention, or impose a single sales amount of fifty percent to less than two times the fine; sales amount of two hundred thousand yuan less than five hundred thousand yuan, at two to seven yearsFixed-term imprisonmentThe sales amount of fifty percent, and more than two times the fine; sales amount of five hundred thousand yuan less than two million yuan, more than seven yearsFixed-term imprisonmentThe sales amount of fifty percent, and more than two times the fine; sales amount of two million yuan of above, fifteen years in prison orLife imprisonmentThe sales amount of fifty percent, and more than two times the fine or confiscation of property.

 

The relevant provisions:

 

 

"Interpretation of the Supreme People's court, the Supreme People's Procuratorate on handling the issues concerning the specific application of law in criminal cases of illegal production, sale of tobacco monopoly commodities."(Interpretation (2010)7No.2010Years3Month26Day)

In order to maintain the order of the socialist market economy, to punish the illegal production, sales of tobacco monopoly commodities and other crime, according to the relevant provisions of the criminal law, the specific application of law for several problems of this kind of criminal cases are interpreted as follows:

The first production, sale of counterfeit cigarettes, cigars and other tobacco products, sales in the amount of fifty thousand yuan of above, in accordance with the provisions of article 140th of the criminal law, to production, sales and shoddy products be convicted and punished.

Without cigarettes, cigars and other tobacco products are the owner of a registered trademark licensing, in the cigarette, cigar smoke tobacco monopoly products on the use of its registered trademark, if the circumstances are serious, in accordance with the provisions of article 213rd of the criminal law, the crime of counterfeiting registered trademarks to conviction punishment.

Knowingly selling counterfeit registered trademark of cigarettes, cigars and other tobacco products, sales amount is larger, in accordance with the provisions of article 214th of the criminal law, the crime of selling commodities bearing counterfeit registered trademarks of conviction and punishment.

Forge, or to make others cigarette, cigar or selling counterfeit registered trademark logo, or to make cigarette, cigar labels of a registered trademark, if the circumstances are serious, in accordance with the provisions of article 215th of the criminal law, the registered trademark to illegally manufacturing, selling illegal mark convicted and punished.

In violation of the state tobacco monopoly administration laws and regulations, without the approval of the Department of tobacco monopoly administration license, no license for tobacco monopoly production enterprises, tobacco monopoly wholesale enterprise license, special tobacco monopoly operating business license, proof of tobacco monopoly retail license license, illegal operation of tobacco monopoly commodities, if the circumstances are serious, in accordance with the provisions of the criminal law 225th one, toThe crime of illegal business operationThe conviction and punishment.

Second counterfeit cigarettes, cigars and other tobacco products are not selling, value to the criminal law 140th stipulation of the sales amount of conviction standard amount of more than three times, or the sales amount has not reached fifty thousand yuan, but with no sales value amounted to one hundred and fifty thousand yuan, to production, sales and shoddy products crimes (attempted the conviction and punishment).

The amount of sales and non sales value reached a differentLegal penaltyThe amplitude or have reached the sameLegal penaltyAmplitude, the punishment heavierLegal penaltyWithin the range of discretionHe shall be given a heavier punishment.

Seized fake cigarettes, not sales of cigars, to ascertain the sales price, calculated in accordance with the actual sales price. Unable to identify the actual sales price, brand, calculated in accordance with the administrative departments of tobacco monopoly issued by provincial seized the brand cigarette, cigar retail price; no brand, calculated in accordance with the administrative departments of tobacco monopoly issued by provincial seized last year, the average retail price of cigarettes.

The sales amount200Million yuan, or the sales amount210Million yuan of above, belong to "fifteen years in prison orLife imprisonment"Starting point criteria.

The unit crimeThe starting point for the starting point of the first four standard standard5Times.

 

"The Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the State Tobacco Monopoly Bureau for counterfeit tobacco products such as criminal case law applicable to the problem of" Forum(2003Years12Month23Day)

One, on the production, the sale of fake and shoddy tobacco products act is legal issues

(a) on the production of fake tobacco products not selling or not selling behavior conviction and sentencing issues according to the provisions of article 140th of the criminal law, the production, the sale of fake and shoddy tobacco products, sales in the amount of fifty thousand yuan, production, selling fake or substandard products.

According to "the Supreme People's court, the Supreme People's Procuratorate on handling the production, the sale of fake and shoddy merchandise criminal case concrete application law interpretation of several issues" the relevant provisions, the sales amount refers to the producers, sellers sell shoddy tobacco products and deserve all the illegal income. Inferior tobacco products not yet sales, value reached three times the amount of sales of article 140th of the criminal law (one hundred and fifty thousand yuan) above, to production, sales and shoddy products crimes (attempted) convicted and punished. Value is calculated using the fake and shoddy products, illegal production, sale price; there is no price, calculated in accordance with the average market price of similar products.

The value of goods can not be determined, according to the State Planning Commission, the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security1997Years4Month22Regulations issued jointly by the "seizure, confiscation articles recovered, appraisal management approach", commissioned valuation institutions designated to determine.

Inferior tobacco products not yet sales, value reached one hundred and fifty thousand yuan less than two hundred thousand yuan, two hundred thousand yuan less than five hundred thousand yuan, five hundred thousand yuan less than two million yuan, two million yuan, respectively in accordance with the provisions of article 140th of the criminal law provisions of the sentencing convicted and punished the file time.

The amount of sales and shoddy tobacco products less than fifty thousand yuan, but the value of goods and shoddy tobacco products and have not yet sold amount achieves one hundred and fifty thousand yuan of above, to production, sales and shoddy products crimes (attempted) convicted and punished.

The production of fake tobacco products did not sell, can not be calculated value, any of the following circumstances, the production and selling fake or substandard products (attempted) convicted and punished:

1Producing fake cigarette tobacco in the number1000Kg;

2Producing fake smoke tobacco in the number15O0Kg.

(two) on the illegal production, assembly, sales of tobacco machinery punishment problem

Illegal production, assembly, sales of tobacco specific mechanical behavior, in accordance with the provisions of article 140th of the criminal law; in the production, sales and shoddy products crimes investigationCriminal responsibility.

Four, about the accomplice

Knows or ought to know the others to commit crime in 1 to the provisions of article third, is still the implementation of one of the following acts, shall be deemed to be an accomplice, shall be prosecutedCriminal responsibility:

1Directly involved in the production, sale of fake tobacco products or selling counterfeit cigarettes by a registered trademark of the tobacco products or directly involved in illegal tobacco products and plays an important role in the;

2Provide housing, facilities, equipment, vehicles, loans, funds, accounts, invoices, certificates, technology, facilities and conditions, to help the production, storage, transportation, sales of fake and shoddy tobacco products, illegal tobacco products;

3Transport of counterfeit tobacco products.

The above-mentioned persons in expose others to commit a crime is verified, or provide important clues, haveRender meritorious servicePerformance, may be given a lighter orMitigation of punishmentThere are significantRender meritorious servicePerformance, can reduce orExempt from punishment.

Five,The personnel of state organsParticipate in the implementation of this discipline punishment to crime first to article third of the regulations of the

According to "the Supreme People's court, the Supreme People's Procuratorate on handling the production, the sale of fake and shoddy merchandise concrete application of law in criminal cases a number of issues of interpretation" of the provisions,The personnel of state organsParticipate in the implementation of this discipline to crime first to article third of the regulations,He shall be given a heavier punishment.

Six, about one crime and several crimes

Criminal behavior of the crime of commodity production, selling fake or substandard products, sales of counterfeit registered trademark,The crime of illegal business operationCrime, in accordance with the provisions of punishment heavier punishment.

Ten, about the identification problem

Identification of counterfeit tobacco products, or authorized by the state tobacco monopoly administration provincial tobacco product quality supervision and inspection, in accordance with relevant provisions to fake cigarettes identification test management formulated by the State Tobacco Monopoly Bureau and counterfeit cigarettes identification test procedures.

Identification of counterfeit tobacco machinery by the State Quality Supervision Department, or its entrusted the National Tobacco Quality Supervision and inspection center, according to the relevant technical standards of the tobacco industry.

Eleven, on tobacco products, cigarette

This discipline to "tobacco products refer to cigarettes, cigars, pipe tobacco, redried leaf tobacco, tobacco, cigarette paper, filter rods, cigarette tow.

This discipline to said cigarette comprises cigarette and tobacco products.

 

"The Supreme People's Procuratorate, the Ministry of Public Security issued on the 'provisions of the Supreme People's Procuratorate, Ministry of public security agencies under the jurisdiction of the criminal prosecution standard (a)' notice"(2008Years6Month25Day)

Sixteenth producers, sellers in adulterates products, fake, shoddy, or with unqualified products as qualified products, suspected of any of the following circumstances, shall be filed for investigation and prosecution:

(a) and inferior products sales amount of fifty thousand yuan;

(two) and inferior products did not sell, value the amount of one hundred and fifty thousand yuan;

(three) and inferior products sales amount is less than fifty thousand yuan, but the sales amount multiplied by three times, and shoddy products have not yet sold a total amount of one hundred and fifty thousand yuan more than the value of.

The provisions of this article"Doping, adulterated", refers to the product mix impurities or foreign body, causes the product quality does not conform to the national laws, regulations or the quality of the products Express quality standard requirements, reduce, lose their performance behavior;"Fake", refers to the absence of a performance products as with the use of performance behavior of products;"Shoddy", refers to the low grade, low grade of products as high grade, high-grade products, or incomplete, waste parts assembled combination, posing as genuine or new product behavior;"The unqualified products", refers to "quality does not conform to the provisions of the people's Republic of China product quality law" requirements of the product.

The behavior of the provisions of this article are difficult to determine, the product quality inspection institutions shall entrust the laws, administrative rules and regulations were identified. The provisions of this article"The amount of sales", refers to all the illegal income of producers, sellers sell shoddy products obtained and deserve;"The value of goods"The fake and shoddy products, illegal production, sales price calculation; there is no price, calculated in accordance with the average market price of similar products. The value of goods are difficult to determine, in accordance with the "seizure, recovery, confiscated goods valuation management measures" provisions, commissioned valuation institutions are determined.

"Interpretation of the Supreme People's court, the Supreme People's Procuratorate for production, several issues concerning the specific application of the law in criminal cases" selling fake and inferior commodities(2001Years4Month9Day)

Article 1The criminal lawThe provisions of article 140th"In adulterates products", refers to the incorporation of impurities or foreign body in the product, the product quality is not consistent with national laws, regulations or the quality of the products Express quality standard requirements, reduce, lose their performance behavior.

Article 140th of the criminal law"Fake", refers to the absence of a performance products as with the use of performance behavior of products.

Article 140th of the criminal law"Shoddy", refers to the low grade, low grade of products as high grade, high-grade products, or incomplete, waste parts assembled combination, posing as genuine or new product behavior.

Article 140th of the criminal law"The unqualified products"Not in conformity with the quality, refers to "the people's Republic of China product quality law" provisions of the third paragraph of the twenty-sixth requirements of the product.

The behavior of the provisions of this article are difficult to determine, the product quality inspection institutions shall entrust the laws, administrative rules and regulations were identified.

Second article 140th of the criminal law, the provisions of article 149th"The amount of sales", refers to all the illegal income of producers, sellers in the sale of fake and shoddy products obtained and deserve.

Fake and inferior products did not sell, value reached the sales amount of article 140th of the criminal law is more than three times, in the production, selling fake or substandard products (attempted) convicted and punished.

Value is calculated using the fake and shoddy products, illegal production, sale price; there is no price, calculated in accordance with the average market price of similar products. The value of goods can not be determined, according to the State Planning Commission, the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security1997Years4Month22Regulations issued jointly by the "seizure, confiscation articles recovered, appraisal management approach", commissioned valuation institutions designated to determine.

Many implementation in production, sales and shoddy products, untreated, the amount of sales and shoddy products or the value of the amount of accumulative calculation.

Article eighth country authorities for personnel play favouritism and commit irregularities, the production, the sale of fake and shoddy merchandiseCrimeDoes not fulfill the legal provisions and responsibilities, has one of the following circumstances, belongs to the criminal law 414th stipulation"If the circumstances are serious":

(a) production, sales of fake or indulgence of poisonous and harmful foodCrimeBehavior;

(two) according to the law may be sentenced to indulge2Years or more severe punishment, production, sales of fake and inferior commoditiesCrimeBehavior;

(three) for3With the production, sales of fake and shoddy goods crime unit or individual fails to perform his duty;

(four) the interests of the country and the people suffer a great loss or Chi ninth adverse impact knows or ought to know the others to implement the production, sales and shoddy goods crime, and provide loans, funds, accounts, invoices, certificates, licenses for the production, management, or places or transport, storage, post convenient conditions, or provide false production technology, production, sales and shoddy goods crime accomplice.

Tenth implementation in production, sales and shoddy goods crime, and constitute the infringement of intellectual property rights, illegal business and other crime, in accordance with the provisions of punishment heavier punishment.

Article eleventh the implementation of article 140th of the criminal law to the provisions of article 148th of the criminal, but also by violence, threats to resist the investigation, constitutes another crime, in accordance with theCombined punishment for several crimesThe provisions of punishment.

Article twelfthThe personnel of state organsParticipate in production, sales and shoddy goods crime,He shall be given a heavier punishment.

                                             Gao Qingxiao Lawyer