Criminal liability for making and selling fake masks
□ Liu Jie
Since the fake mask incident in Yiwu, Zhejiang Province on January 25, many fake masks have been investigated and dealt with recently, which has aroused widespread concern in the society. At present, masks have become a necessity for protection, and fake masks flowing into the market not only have no protective effect, but may also have serious negative effects on physical health.
The act of manufacturing and selling fake masks shall be severely punished in accordance with law. So, which acts of making and selling fake masks constitute a crime? What kind of crime is committed?
Question 1: Do I need to reach a certain sales amount to produce a fake medical mask to be sentenced?
In this outbreak, there are 4 types of masks recommended by the National Health and Medical Commission, including: disposable medical masks, medical surgical masks, KN95 / N95 and above particulate matter masks, and medical masks. The "Notice on the Classification of Medical Disposable Protective Clothing and Other Products" issued by the State Food and Drug Administration classifies medical protective masks and surgical surgical masks (that is, medical surgical masks) as the second type of medical devices for management. The 2017 edition of the "Medical Device Classification Catalogue" also clearly classifies medical protective masks and medical surgical masks as second-class medical devices. In addition, according to the latest "Opinions on Preventing and Controlling Illegal Crimes against the Coronary Epidemic of New Coronavirus Infection" (hereinafter referred to as "Opinions") issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice, During the period of control, the production of medical masks, goggles, protective clothing and other medical equipment that does not meet the national and industrial standards to protect human health, or the sale of medical equipment that is clearly not in compliance with the standards, is sufficient to seriously endanger human health. The provisions of Article 145 shall be convicted and punished for the crime of producing and selling medical equipment that does not meet the standards.
Therefore, the latest regulations include all medical masks in the category of medical equipment, which strengthens the protection of criminal law. If the medical protective masks and surgical surgical masks manufactured and sold do not meet the corresponding standards, as long as it is sufficient to endanger human health, it does not need to cause substantial damage to the results, and it does not require the sales amount to reach a certain amount to constitute the crime. At the same time, in accordance with the provisions of the Interpretation of Several Issues Concerning the Specific Application of the Law in Handling Criminal Cases Hindering the Prevention and Control of Disasters such as Epidemic of Infectious Diseases (hereinafter referred to as the "Interpretation"), the act should be punished severely.
It should be noted that, because medical masks are classified as medical devices, they are also general products, so they are also regulated by the crime of producing and selling counterfeit products. Even if the medical masks manufactured and sold are not enough to endanger human health, there are fake products. If the product is genuine, substandard, or non-conforming product, pretends to be a qualified product, and the sales amount reaches more than 50,000 yuan, the company shall be convicted and punished for producing and selling fake and shoddy products.
Question 2: What kind of crimes are involved in the production and sale of masks for labelling?
The production and sale of fake masks that infringe on the trademarks of others and of unsatisfactory quality not only commits the crime of producing and selling fake and inferior products, but also the crime of selling counterfeit registered trademark products, and shall be punished by a felony. In terms of incrimination standards, the two are consistent. Both are convicted of sales of 50,000 yuan, but the first statutory penalty for the sale of counterfeit and inferior products is less than two years, and the crime of selling counterfeit registered trademarks is less than three years. The first statutory maximum sentence for the latter is heavier.
Therefore, those with sales between 50,000 and 200,000 yuan shall be convicted of selling off counterfeit registered trademarks; those with sales of more than 200,000 yuan shall be punished with a felony after being sentenced. In short, whichever offense is the heavier the punishment is, the more the offense is chosen to apply. If the masks sold by the merchant are only labeled and labelled, and the quality is verified after the fact, then the conviction and punishment will be imposed for the sale of goods that counterfeit the registered trademark.
Question 3: Can entities other than producers and sellers bear criminal responsibility?
Businesses selling fake masks often publish advertisements through major online sales platforms. If third-party platforms that review and publish product advertisements and other information know the situation of fake masks, they should bear criminal responsibility.
In accordance with the "Opinions" and "Interpretations", advertisers, advertising operators, and advertising publishers violate the state's regulations and use the advertisement to make false sales of goods or services under the name of preventing and controlling sudden infectious diseases and other disasters. Propaganda that causes many people to be deceived, a large amount of illegal income, or other serious circumstances, constitutes the crime of false advertising, and is punished by imprisonment or detention of less than two years and a single fine.
It can be seen that every link in the production, sales, advertising, and circulation of fake masks has the subject of criminal responsibility, and the criminal law regulates such acts very closely.
(The author is a judge of the Criminal Trial Division of the People's Court of Xicheng District, Beijing. This article is organized by our reporter Zhu Ningning.)