China News Service, March 4th. According to the official website of the Supreme People's Procuratorate, procuratorial agencies across the country are currently involved in and handling 1,052 2,251 economic crimes that prevent and control the epidemic, of which 427 are 850 suspected of producing and selling counterfeit products. The crime of producing and selling counterfeit drugs was 2 in 4 cases, the crime of producing and selling inferior drugs was 2 in 2 cases, the crime of producing and selling substandard medical equipment was 848 and 848 people, and the crime of selling counterfeit registered trademarks was 285 and illegal. There were 161 cases of 262 crimes.

The Supreme People's Procuratorate pointed out that the new crown pneumonia epidemic was a major public health emergency with the fastest spread, the widest range of infections, and the most difficult prevention and control since the founding of New China. Under such a special background, prevention and control, protective equipment, and materials that can effectively block the spread of the virus and prevent the spread of the epidemic become particularly important. Some criminals are motivated by the desire to produce and sell fake and inferior masks, medical alcohol, disinfectant and other products, seek illegal interests, seriously disrupt market order, and endanger the lives and health of the people. They should be severely punished according to law.

The Supreme People's Procuratorate pointed out that since the outbreak of the new crown pneumonia epidemic, the national procuratorial organs have based their procuratorial functions and fully performed their duties, providing effective judicial guarantees for effective prevention and control of the epidemic, maintaining market order, and helping to resume work and production. Specifically, on the one hand, crimes that severely disrupt the order of the socialist market economy, such as the production and sale of fake and inferior epidemic-proof supplies and supplies, the use of the epidemic situation to hoard prices, hoarding, and profiteering, form a powerful deterrent; The work deployment requirements for precision and resumption of production by districts and divisions, while resolutely maintaining the epidemic prevention and control order, will help enterprises to resume production and orderly in accordance with the law, and provide high-quality and efficient rule of law products and inspection products for the overall promotion of epidemic prevention and control and economic and social development.

The Supreme People's Procuratorate announced on March 4 that the national procuratorial organs handled typical cases of crimes preventing and preventing the new crown pneumonia epidemic (the fourth batch), including punishing production and sales of fake and shoddy products according to law, and punishing production and sales of medical equipment that did not meet the standards. , Punishing crimes of producing and selling goods that counterfeit registered trademarks, punishing illegal business crimes that involve driving up prices, etc.

I. Punishing crimes of producing and selling shoddy products according to law

[Legal summary]

Article 140 of the Criminal Law stipulates that producers and sellers adulterate or adulterate products, pretend to be false, substandard or pretend to be qualified products with unqualified products, and the sales amount is more than 50,000 yuan. Crime of producing and selling counterfeit products. During the period of prevention and control of the epidemic, the production and sale of counterfeit prevention and control, protective supplies, and materials that meet the provisions of Article 140 of the Criminal Law shall be convicted and punished for the crime of production and sale of counterfeit and inferior products.

Procuratorial organs need to accurately grasp the following outstanding issues when handling such cases: First, the qualitative issue of the "three no" masks. "Three no" masks (no manufacturing enterprises, no production license, registration certificate number, no production date, batch number) can generally be identified as counterfeit products in combination with quality inspection; if the actor declares "medical masks" and passes imitation certification materials, Packaging, logos, etc. are mistaken for "medical masks" for sale, or the purchaser explicitly purchases "medical masks" and the actor defaults, and it is appropriate to consider counterfeit medical equipment. The second problem is that the fake and shoddy products have not been sold or the sales amount is less than 50,000 yuan. According to the first paragraph of Article 149 of the Criminal Law, the production and sale of the products listed in Articles 141 to 148 of this section do not constitute a crime under each of these articles, but the sales amount Those above 50,000 yuan shall be convicted and punished in accordance with the provisions of Article 140. This regulation embodies a strict legal network and a strict crackdown on the production and sale of fakes, especially during epidemic prevention and control. The production and sale of counterfeit medicines, inferior medicines, and inferior medical equipment, such as prevention and treatment, protective supplies, and materials, do not constitute a correspondingly prescribed crime, but if the sales amount is more than 50,000 yuan, the punishment shall be convicted and punished in accordance with Article 140 of the Criminal Law. . For those that have not been sold or the sales amount is less than 50,000 yuan, the Ministry of Public Security and the Ministry of Public Security "Regulations on the Prosecution and Prosecution Standards of Criminal Cases under the Jurisdiction of Public Security Organs (1)" and the "Two Highs" The Interpretation of Several Issues on the Specific Application of Laws in Criminal Cases "shall be filed for prosecution if the value of the sales has been multiplied by three times and the total value of the value of the unsold inferior products has exceeded 150,000 yuan. Those who sell at a high price, make huge profits, have a large amount of illegal income or have other serious circumstances that seriously disrupt the market order can also be punished for illegal business operations.

While punishing hazards and epidemics to prevent and control crimes in accordance with the law, we must also pay attention to guaranteeing the resumption of work and production of enterprises in accordance with the law, and overall promotion of production and operation. For enterprise-related cases, use compulsory measures such as seizure, seizure, and freezing, such as conducting timely reviews of the necessity of detention for business operators in custody at the stage of investigation, prosecution and trial. The change of compulsory measures does not affect the smooth proceeding of the lawsuit. If it is necessary to continue detention and meet the requirements for prevention and control, the coercive measures may be changed in a timely manner in accordance with the law. Those who need to deal with the emergency affairs of the enterprise in custody should allow them to be handled in an appropriate way according to the circumstances of the case.

Case 1: Case of Fangmou selling inferior products in Xianju County, Zhejiang Province

During the new crown pneumonia epidemic, the defendant Fang Mou (individual business person, from Xianju County, Zhejiang Province), for illegal gains, purchased white second- and third-layer masks in bulk from Suzhou City, Jiangsu Province, and knew that the masks belonged to " In the case of "San Wu" inferior products, they are sold online and offline to Ke Moumou, Jiang Moumou (all handled separately) and others. From January 25 to February 5, 2020, more than 250,000 masks of the "three no" masks were sold, with a sales amount of about 240,000 yuan and an illegal profit of more than 70,000 yuan. On February 5th, after inspection by the inspection agency, the filtration efficiency of the batch of masks did not meet the relevant requirements of national standards, and they were unqualified products.

On February 6, the Xianju County Public Security Bureau filed an investigation on the suspicion of selling counterfeit and inferior products. The Xianju County Procuratorate stepped in and put forward relevant opinions. On February 10, the Xianju County Public Security Bureau asked for approval of the arrest, and the Xianju County Procuratorate made the decision to approve the arrest on the same day. On February 12, the investigation of Xianju County Public Security Bureau ended its transfer, examination and prosecution. The next day, the Xianju County Procuratorate filed an indictment against the defendant, Fang Moumou, for the sale of counterfeit and inferior products, and applied the confession and leniency system in accordance with the law. On February 14, the court of Xianju County applied the expedited procedure for trial, adopted the sentencing suggestions of the procuratorial organ, and sentenced a certain term of imprisonment to 2 years and 8 months for the crime of selling fake and shoddy products, and fined 350,000 yuan, which was recovered according to law. The illegal income of 53,700 yuan was confiscated according to law.

Case 2: Guimou, Xiaogan City, Hubei Province, etc. Suspected of Selling Fake and Inferior Products

On January 25, 2020, Yang (unemployed, Xiaogan City, Hubei Province) saw that the epidemic situation in Xiaogan area was relatively serious, and epidemic prevention materials were in short supply. Then he discussed with Guimou (unemployed, Xiaogan City, Hubei Province) to do epidemic prevention materials business. Gui is responsible for organizing the supply of goods, and Yang is responsible for the sales. On the 27th, a relative from Guizhou bought 30,700 kg of "Sanlian" brand 84 disinfectant from Shijiazhuang, Hebei, and shipped it to Xiaogan on the 31st. On the same day, Yang and Gui found that the batch of 84 disinfectant was “Jilan” brand, which was inconsistent with the trademark brand, manufacturer and product certificate of the “Weilan” brand 84 disinfectant, and The batch of disinfectant received did not have a trademark attached. Instead, the trademark identification was placed separately from the goods and the trademark was not cut. When scanning the QR code on the trademark with WeChat, the batch number and date of production could not be scanned. Not as it should be. Knowing the above, Gui and Yang still sold 2,000 kilograms to the epidemic prevention headquarters of a town in Xiaonan District, Xiaogan City, and sold 4,000 kilograms to the epidemic prevention headquarters of another town in Xiaonan District, and sold 24,000 kilograms. Drug dealer Liu, a total sales amount of 148,000 yuan. On the same day, the drug dealer Liu sold 10,000 kilograms to an epidemic prevention headquarters in a certain district of Xiaogan City and 10450 kilograms to a pharmacy in Xiaogan. On February 1, 10,450 kilograms of 84 disinfectant of the drug store were seized and detained by the Market Supervision Administration of Xiaogan City. It was identified that the chlorine content in the batch of "Jilan" brand 84 disinfectant solution did not meet the standards, did not meet the requirements of the national standard GB19106, and was an unqualified product. The Market Supervision and Administration Bureau of Xiaogan City believed that the case was transferred to a public security organ for investigation on February 5 and was also copied to the procuratorial organ at the same time.

Xiaogan City Procuratorate promptly dispatched personnel to participate in the investigation in advance to understand the case and evidence situation, and provide guidance on the direction of evidence collection, fixation, improvement, and evidence collection. After being arrested by the public security organs, on February 20, the Xiaogan Procuratorate made a decision on arrest of Gui and Yang for the crime of selling fake and shoddy products.

Case 3: Jiang Moumou in Lanxi City, Zhejiang Province is suspected of selling counterfeit products

From January 21st to January 27th, 2020, the criminal suspect Jiang Moumou produced a Lanxi handicraft factory that he founded in 2009 (the factory mainly produced masks before, and was cancelled due to poor management). The masks stacked in the warehouse were sold as fake products through the WeChat circle of friends as unqualified products and sold to multiple pharmacies with a sales amount of more than 100,000 yuan. After inspection by the inspection agency, the filtering efficiency of the masks sold did not meet the standard requirements, and it was an unqualified product. Lanxi City Market Supervision Bureau transferred the case clue to the public security organ on February 2, 2020, and Lanxi City Public Security Bureau opened a case for investigation on the same day. Later, the Lanxi City Public Security Bureau requested the arrest of Jiang Moumou, and the Municipal Procuratorate made a decision on arrest.

After the criminal suspect Jiang Moumou was arrested, a labor protection supplies factory in Lanxi City, with Jiang Moumou as the actual controller of the enterprise, responsible for the daily production and operation of the enterprise, requested the Lanxi City Procuratorate to change its compulsory measures. The procuratorial organ immediately appointed a prosecutor to conduct the review of the necessity of detention: First, they went to the market supervision administration and other competent departments to investigate the mask project of the labor protection supplies factory. After verification, the factory was incorporated on February 14, 2020. The legal representative is Ye, who mainly produces disposable masks for children and children's masks. The second is to conduct field visits to the labor protection supplies factory to investigate and verify the production and operation of the factory. The role of Jiang Moumou; the third is to review Jiang Moumou, verify the relevant situation, and confirm his attitude of confession. In the end, it was verified that the labor protection supplies factory was the only company in the city with the ability to produce children's masks. Jiang Moumou, as the actual controller of the enterprise, has control over the production equipment and raw material purchase channels. The shortage of equipment and raw materials required for the subsequent expansion of the company needs to be resolved by Jiang Moumou. If the detention continues, it will affect the company's expansion of production and the city's epidemic prevention. goods supply.

Comprehensive investigation and verification of relevant circumstances, the procuratorial organs in accordance with the provisions of the People's Procuratorate for the review of the necessity of detention cases (trial) Article 18 (12) provisions, that the criminal suspect Jiang Moumou did not need to continue detention, in 2020 On February 20, 2000, he proposed to the public security organs to change the compulsory measures, and Jiang Mou was released on bail pending trial. On February 24, the procuratorial organs returned to the enterprise. The labor protection equipment factory has moved into a new factory building, and the newly purchased machinery and equipment have also been put into use. The production scale has been expanded, which has played a positive role in ensuring the supply of local epidemic prevention supplies.

2.Punish the crime of producing and selling medical equipment that does not meet the standards according to law

[Legal summary]

During the epidemic prevention and control period, if medical masks, goggles, protective clothing and other medical equipment are produced that do not meet the national and industrial standards to protect human health, or medical equipment that is known to be out of compliance with the standard is sufficient to seriously endanger human health, Article 145 of the Criminal Law stipulates that the crime of producing and selling medical equipment that does not meet the standards shall be convicted and punished. The medical equipment in this crime includes medical equipment and medical sanitary materials.

Medical masks, goggles, protective clothing and other medical equipment are related to the personal safety of medical personnel and the people. The harm of producing and selling fake and inferior medical equipment is extremely serious and must be severely punished according to law. The outstanding problems reflected in judicial practice should also be accurately grasped: First, the problem of disposable medical masks. Specific identification of disposable medical masks can be made in accordance with the "Category of Medical Device Classification" issued by the State Administration. Common medical protective masks, medical surgical masks, disposable medical masks, protective clothing, and protective glasses are all included in the catalog and belong to medical devices. The State Drug Administration and the provincial drug supervision bureaus also register and manage disposable medical masks. The relevant provisions of Article 145 of the Criminal Law can be applied to relevant criminal cases. Other types of masks, alcohol, and other items not listed in the medical device catalogue should not be identified as medical devices. The second is the issue of "national standards" and "industry standards". The "national standards" and "industry standards" in Article 145 of the Criminal Law should be based on the protection of human health. Criminal law and related judicial interpretations do not limit them to mandatory national standards or industry standards. According to the spirit of the Criminal Law and the 2001 "Two Highs", "Interpretation of Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Production and Sales of Fake and Inferior Goods", "Regulations on the Supervision and Administration of Medical Devices", and "Regulations on the Management of Medical Device Registration", For industry standards, registered product standards or product technical requirements may be regarded as industry standards. The third problem is the identification of "enough to seriously endanger human health." "Enough to seriously endanger human health" is an important criminal condition for the crime of producing and selling medical equipment that does not meet standards. According to the 2003 "Two Highs" and "Interpretations on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases That Hinder the Prevention and Control of Disasters such as Epidemics of Infectious Diseases" and other provisions, the review and determination of whether the cases are "sufficient to seriously endanger human health" should be reviewed from the handling of the case. Whether it has the functions of protection and treatment, whether it may cause misdiagnosis and treatment, whether it may cause serious injury to the human body, whether it may cause serious harm to human health, etc., comprehensively determine the function, use method and scope of application of the medical device.

Case 4: Case of suspected sales of non-compliant medical equipment by Ji Mou in Yangzhou City, Jiangsu Province

On January 29, 2020, the defendant Ji Moumou (operator of the gym) learned that the new crown pneumonia epidemic was spreading and spreading in some areas, and predicted that the market for medical masks with protective functions was in great demand, and then contacted through the network. A tourist supplies factory (non-medical equipment distributor) purchased 9,600 "Piao'an" disposable medical masks with a shelf life of 0.5 yuan each, and sold them that evening. Since then, Ji Moumou saw a considerable profit on the sales of masks, knowing that the factory has another 60,000 "Piao An" brand disposable medical masks as expired products, still purchased at the price of 0.1 yuan and paid on-site settlement . In order to conceal the fact that the masks have expired, in the early morning of January 30, Ji Moumou stored the above masks in the fitness swimming pool operated by him, tore off the outer packaging bag of each pack of masks, and destroyed the products marked with the production date and expiration date. Certificate of conformity. From January 30 to 31, Ji Moumou posted sales information through a WeChat circle of friends and sold the above masks to victims Cao Mou and others for a price ranging from 0.5 yuan to 2 yuan, receiving 55,100 yuan. After inspection by the inspection agency, the bacterial filtration efficiency of the masks involved in the case did not meet the requirements of relevant standards and was an unqualified product. The Economic and Technological Development Division of the Public Security Bureau of Yangzhou City filed a case against Ji Moumou on the crime of selling fake and shoddy products, and obtained a warrant pending trial on February 1. After the procuratorial agency was involved in the investigation, it guided the public security organs to strengthen evidence collection on the nature, functional use, and subjective intention of the masks involved in the case. It was determined that the masks involved were medical devices, and the subject matter of the time of sale was clearly specified. The Opinions on the Prevention and Control of Unlawful Crimes That Impede the Epidemic Situation of New Coronavirus Infection Pneumonia According to the Law of the "Two Highs and Two Ministries", suggesting that the public security organs change the crimes involved. On February 22, the public security organ was transferred for review and prosecution for Ji Mou suspected of selling a medical device that did not meet the standards. The procuratorial organ protected the defendant's litigation rights in accordance with the law, heed the opinions of the defendant and his defender, and the defendant pleaded guilty and pleaded guilty and agreed to apply the expedited procedure. On February 24, the Procuratorate of Yangzhou Economic and Technological Development Zone filed a public prosecution for the defendant Ji Moumou's crime of selling medical equipment that did not meet the standards, and the case is currently in court.

3. Punish crimes in the production and sale of goods that counterfeit registered trademarks

[Legal summary]

During the epidemic prevention and control, those who produce or sell counterfeit prevention and control products, materials, and materials that meet the provisions of Article 140 of the Criminal Law shall be convicted and punished for the crime of producing and selling counterfeit and inferior products; the production does not meet the national and industrial standards for protecting human health Medical masks, goggles, protective clothing and other medical equipment, or sales of medical equipment that is known to be substandard, is sufficient to seriously endanger human health, in accordance with Article 145 of the Criminal Law, the production and sale of substandard medical equipment Equipment conviction and punishment. At the same time, according to Article 214 of the Criminal Law, sales of goods that are known to be counterfeit registered trademarks, and the sales amount is large, shall be convicted and punished for the crime of selling counterfeit registered trademarks.

In the specific application of the law in the handling of criminal cases involving materials related to the epidemic situation, it is necessary to correctly distinguish and apply the "crime for the production and sale of medical equipment that does not meet the standards", the "crime for the production and sale of counterfeit products" and the "crime for the sale of counterfeit registered trademarks." If medical protective masks, medical surgical masks, disposable medical masks, protective clothing, protective glasses and other medical devices included in the Medical Device Classification Catalog are produced and sold, and they do not meet the national and industry standards, they shall be in accordance with the Criminal Law. Article 145 was found to be "the crime of producing and selling medical equipment that does not meet standards". For the production and sale of other medical-related items that are not included in the medical device catalog, if adulterated, adulterated, falsely filled, or substandardly filled with qualified products, the sales amount is more than 50,000 yuan, or the value of the value More than 150,000 people shall be convicted and punished for the crime of producing and selling fake and shoddy products in accordance with Article 140 of the Criminal Law. If the act of the actor also constitutes a crime of infringing intellectual property rights, such as the crime of selling counterfeit registered trademarks, the punishment shall be convicted.

Case 5: Case of Chengmou selling counterfeit registered trademarks in Nanjing, Jiangsu Province

The defendant Cheng Moumou is a medical representative of a pharmaceutical company in Nanjing. At the end of January 2020, due to the need for the prevention and control of the new crown pneumonia epidemic, masks were scarce on the market. The defendants Cheng Moumou and Zhu Mou negotiated to buy imported masks and sell them at drugstores for profit. On January 21, the two defendants contacted the self-employed defendant Ding Moumou of a commodity wholesale market in Nanjing to buy a mask. Later Ding Mou purchased 51,600 "3M" brand masks from the defendant Zhang Mou of the same market and resold them to Cheng Moumou and Zhu Mou, and informed that the masks were imitation masks. Upon investigation, the above masks were inferior counterfeit "3M" masks produced by small family workshops run by Xu Moumou (handled in another case). On January 22, the defendant Cheng Moumou announced in the WeChat group of the pharmacy operator that he joined, that a group of 3M masks made overnight by the company for epidemic prevention and control could be supplied to various pharmacies. From 22 pm to 22 pm on January 22, the defendant Cheng Moumou sold the above-mentioned inferior masks to more than 20 pharmacies in the lobby of the first floor of the pharmaceutical company where he worked for more than RMB 309,000. And provided a false inspection report. It was identified that the above-mentioned masks marked with the "3M" registered trademark are commodities that infringe the exclusive right of the "3M" registered trademark, and the filtering efficiency does not meet the quality standards.

On January 29, 2020, the Yuhuatai District Market Supervision and Administration Bureau in Nanjing received a report from the masses and transferred the clues to the Yuhuatai Branch of the Nanjing Public Security Bureau. The branch arrested the defendant on January 29 and January 30 for selling counterfeit masks. Four people, such as XX and Zhu, were detained. The Procuratorate of Yuhuatai District of Nanjing City immediately received the case report from the public security organs on the same day and immediately intervened in the case remotely through the video conference system, and put forward suggestions for investigating evidence from the aspects of case characterization, evidence collection and fixation, and source of masks.

On February 5, 2020, the Yuhuatai Branch of the Nanjing Public Security Bureau submitted the case for approval of arrest. On the same day, the Yuhuatai District Procuratorate approved the arrest and put forward further investigation opinions. On February 20, the Yuhuatai Sub-Bureau transferred the case for review and prosecution. After receiving the case, the Yuhuatai District Procuratorate heard the opinions of the defenders and the victims, and questioned the four defendants in accordance with the law. After review, the procuratorial agency found that the facts of the case were clear and the evidence was accurate Sufficiently, the four defendants should be investigated for criminal responsibility for the crime of selling goods that counterfeit registered trademarks, and a public prosecution was filed on February 21. The Yuhuatai District Court of Nanjing City held a remote hearing on March 2 and sentenced the defendants Cheng Moumou and Zhu Mou to three years and two months in prison for the sale of counterfeit registered trademarks. The fine was RMB 160,000; the defendant was sentenced. The person Ding Moumou was sentenced to nine months in prison with a fine of 60,000 yuan; the defendant Zhang Moumou was sentenced to six months in prison and a fine of 60,000 yuan.

4. Punishing illegal business crimes involving price hikes according to law

[Legal summary]

During the period of epidemic prevention and control, the price of urgently needed materials or basic civilian biological products for the purpose of epidemic prevention and control is to make a huge profit, which constitutes a crime, and shall be convicted and punished for the crime of illegal operation. At the same time, with the changes in the epidemic prevention and control situation, it is also necessary to accurately grasp criminal policies, make overall plans to stabilize market order and restore market vitality, and provide judicial guarantees for resumption of work and production.

Case 6: Zhang and others in Jinnan District of Tianjin suspected of illegal business

The criminal suspects Zhang and Jia are the actual controllers of a large pharmacy chain company in Tianjin, and the criminal suspects Su and Wang are the managers of the company's drug stores. On January 21, 2020, Zhang and Jia decided to raise the prices of epidemic protective equipment and medicines sold by the company's pharmacies, take advantage of the epidemic prevention and control to make huge profits, and notify the store managers to implement. Subsequently, the company's 7 pharmacies increased the prices of more than 20 kinds of epidemic protective supplies and medicines and sold them to the public. Among them, the price of masks that were priced at 12 yuan was raised to 128 yuan, and 84 yuan that was priced at 2 yuan before the epidemic occurred. The price of disinfectant was raised to 38 yuan. Within six days from January 21 to January 27, the illegal business amounted to more than 1 million yuan, which severely disrupted the local epidemic prevention order.

On January 27, Tianjin Public Security Bureau's Jinnan Branch opened an investigation after receiving clues from the Jinan District Market Supervision Administration, and arrested the criminal suspect Zhang and the others the next day. The criminal suspects Zhang and Jia , Su Mou, Wang Mou and 4 others were detained. After the public security organs filed the case, the Jinan District Procuratorate intervened as soon as possible, and held joint meetings with the public security organs four times. The public security organs were advised to fix the sales records of the masks, disinfectant and other items of the drug company's subsidiaries, and the voucher in time. Audit the sales of various pharmacies and guide the public security organs to collect evidence related to the case. On February 24, the Tianjin Public Security Bureau's Jinnan Branch petitioned Zhang, Jia, Su, and Wang for approval to arrest. The Jinan District Procuratorate interrogated four suspects via a remote network information system. After review, Zhang and four others violated the state's regulations on market operations and price management during the prevention and control of infectious diseases and other disasters, driving up prices and profiteering, seriously disrupting market order, the circumstances were serious, and the amount of illegal business reached one More than one million yuan. On the same day, Tianjin Jinnan District Procuratorate decided to approve the arrest of four persons, including Zhang, on suspicion of illegal business operations.