China News Service, March 14. According to the website of the Supreme People's Procuratorate, on March 14, the Supreme People's Procuratorate released a typical case of procuratorial organs punishing the crime of manufacturing and selling counterfeit and shoddy goods in accordance with the law.

  The case of Wang Moumou selling fake and shoddy products

  【Key words】

  Selling fake and shoddy products Refined oil Connection of executions Social governance

  【gist】

  Refined oil is an important commodity related to the national economy and people's livelihood. Combating the crime of fake and shoddy refined oil and rectifying the refined oil market will help maintain a regulated and orderly market economic order and protect the legitimate rights and interests of consumers.

Fuel oil and diesel oil have different manufacturing processes and uses. They are two different oil products. They are sold as fuel oil as diesel oil, which complies with the provisions of Article 140 of the Criminal Law, and is convicted and punished for the crime of selling fake and shoddy products.

  【Basic case】

  At the beginning of 2017, the defendant Wang Moumou took over the operation of a petrochemical company and served as the legal representative.

Later, Wang Moumou bought fuel oil (mainly used for marine machinery, boilers, etc.) from others many times in order to earn the price difference, and sold it to a mining company and a logistics company as diesel oil.

Wang Moumou sold fuel oil as diesel more than 100 times, with a total sales of more than 2,200 tons and a total sales amount of more than 13 million yuan.

At the time of the incident, the petrochemical company's oil tank contained 23.5 tons of fuel oil, with a value of more than 130,000 yuan.

  After the inspection by the Product Quality Supervision and Inspection Institute of Jiujiang City, Jiangxi Province, the acidity, flash point (closed), sulfur content and chromaticity of the seized oil did not meet the national standards for ordinary diesel oil, and the inspection concluded that it was unqualified.

  [litigation process]

  On July 2, 2020, the People's Procuratorate of Dongzhi County, Anhui Province prosecuted Wang Moumou for the crime of selling fake and shoddy products.

On September 27, 2020, the Dongzhi County People's Court made a first-instance verdict that the defendant Wang Moumou was guilty of selling fake and shoddy products and sentenced to ten years in prison and a fine of RMB 7 million.

Wang Moumou refused to accept the judgment and appealed.

On December 22, 2020, the Intermediate People's Court of Chizhou City, Anhui Province ruled to dismiss the appeal and upheld the original judgment.

  【Typical meaning】

  (1) Combating the crime of fake and shoddy refined oil in accordance with the law and protecting the rights and interests of consumers.

Refined oil, including diesel, is an important commodity related to the national economy and people's livelihood.

Fuel oil and diesel have different manufacturing processes and uses, and are two different oil products.

Using fuel oil as diesel for automobiles will not only seriously pollute the atmosphere, but also damage important parts of the vehicle, causing driving safety risks and great social harm.

Combating the crime of counterfeit and shoddy refined oil and rectifying the refined oil market will help maintain a regulated and orderly market economic order and protect the legitimate rights and interests of refined oil consumers.

  (2) Comprehensively review the evidence and accurately determine the facts of the crime.

In this case, the oil products seized on the spot were found to be unqualified products after inspection, but whether the oil products previously sold by the defendant met the quality standards requires relevant evidence to prove.

Referring to GB/T28863-2012 "Sampling and Inspection Procedures for Commodity Quality Supervision and Inspection with Prior Quality Information", the procuratorate believes that the inspection report has proved that the oil products for sale in the oil tanks are unqualified.

The defendant purchased the fuel oil from a fixed source, and he knew that it was fuel oil and sold it in the name of diesel oil. There were not only the defendant's confession, but also the testimony of witnesses, accounting vouchers, oil distribution statements and other evidence to corroborate each other. The evidence has formed a complete chain of evidence, which is sufficient to prove that the defendant has always sold fuel oil as diesel oil.

The court adopted this opinion and determined the full amount of the crime, thus effectively cracking down on the crime.

  (3) Strengthen the connection between executions and pay attention to social governance.

At the beginning of the investigation and handling of the case by the market supervision department, the procuratorial organ participated in the consultation and research and judgment, and made suggestions on the characterization of the case, sampling identification, etc., to ensure the smooth transfer of the case, the effective connection between administrative law enforcement and criminal justice, and the formation of joint forces. less than two months.

At the stage of review and prosecution, the procuratorial organ requested the public security organ to improve the evidence, and consulted the market supervision department on the professional issue of oil products to confirm the danger of using fuel oil as diesel fuel.

The procuratorial organs also used the case to explain the law and widely publicized it, further reminding the local practitioners in the refined oil industry to operate in compliance with laws and regulations.

Relevant administrative departments conduct a comprehensive investigation of units operating refined oil products in the county.

At present, the qualified rate of the county's refined oil market is close to 100%, and the safety and operational order of refined oil products have been significantly improved.

  The case of Zhao Moutao and others producing and selling fake and inferior products

  【Key words】

  Production and sales of fake and shoddy products Buffalo-injected beef Sales amount Social governance

  【gist】

  Filling live cattle with water during the slaughtering process violates relevant national quality requirements and reduces the quality of beef products.

Long-term production and sales of buffalo-infused beef can be comprehensively determined by combining electronic data, transaction records, confessions of the defendant, and market transaction habits when the products sold in the past have been lost.

In the process of handling cases, the procuratorial organs should focus on cooperating with the competent administrative organs and public security organs, and actively carry out comprehensive social governance for the supervision loopholes found in the cases, so as to achieve the effect of 1+1>2 case handling.

  【Basic case】

  In June 2016, Zhao Moutao acquired a slaughtering and processing Co., Ltd. in Nantong City, Jiangsu Province, mainly engaged in live cattle slaughtering, beef processing and sales.

From April 2017 to July 2018, in order to seek illegal benefits, Zhao Moutao organized and instructed the defendant Jia Mouyin and others to use the method of inserting water pipes into the heart of the cattle to increase the weight of the beef during the slaughtering of live cattle. A Gang and other workers slaughtered and processed the buffaloes respectively.

The above-mentioned buffalo beef was organized by Zhao Moutao and distributed to many farmers markets in Shanghai by his children Zhao Moujia, Zhao Mouyi and others.

After the incident, the public security organs seized 2,950 kilograms of buffalo beef on the spot at the slaughtering site of a slaughtering and processing company in Nantong.

  According to the audit of Shanghai Judicial Accounting Center Co., Ltd., Zhao Moutao and others produced and sold more than 800,000 kilograms of buffalo beef, with a sales amount of nearly 50 million yuan.

  [litigation process]

  On July 25, 2019, the Shanghai Railway Transportation Procuratorate prosecuted the defendant Zhao Moutao and other 17 people for the crime of producing and selling fake and shoddy products in two batches.

On December 2, 2020, the Shanghai Railway Transportation Court made a first-instance judgment. The defendant Zhao Moutao was sentenced to 15 years in prison, deprived of political rights for three years, and confiscated personal property of 25 million yuan for the crime of producing and selling fake and shoddy products. The other 16 defendants were sentenced to imprisonment ranging from twelve years to one year and six months, and fines.

After the first-instance judgment, some defendants refused to accept the judgment and filed an appeal. On April 6, 2021, the Shanghai Third Intermediate People's Court ruled to reject the appeal and upheld the original judgment, and the judgment has come into effect.

  【Typical meaning】

  (1) Accurately identify the nature of the crime, expose the social harm of buffalo beef, and severely punish crimes that endanger food safety.

The criminal actor injecting water during the slaughtering of live cattle is an act of "doping or adulterating products" as stipulated in Article 140 of the Criminal Law.

According to the "Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering Food Safety", although water injection into livestock and poultry is not enough to cause serious food poisoning accidents or other serious food-borne diseases, it is in line with Article 1 of the Criminal Law. Article 140 shall be convicted and punished for the crime of producing or selling fake and shoddy products.

In this case, in order to reveal the substantial harm of water-injected beef, the procuratorial organ organized a special seminar for food safety experts from scientific research institutions, and notified people with specialized knowledge to testify in court, confirming that water-injection would reduce the nutritional content and value of beef products in the unit, and reduce the The quality of beef, and because water injection is more likely to cause pathogenic microbial contamination, causing food poisoning, water injection beef is a fake and inferior product with substantial social harm.

While fully exposing the social harm of water-injected beef, the procuratorial organs adhered to the "four strictest" principles and severely cracked down on the crime of water-injecting livestock and poultry.

  (2) Accurately determine the sales amount of water-injected beef, reflecting the principle of the unity of criminal responsibility and punishment.

In this case, the amount of beef slaughtered and sold by a slaughtering company in Nantong reached more than 300 million yuan during the time of the incident. Most of the beef has been sold, and according to the defendant's confession, not every cow was filled with water, so how to identify Zhao Moutao The amount of production and sale of buffalo beef by et al. is the difficulty of this case.

The procuratorial organs combined the verified production records, transaction records, chat records of the company, and the confessions of more than 10 water injectors and slaughter workers in the case on the amount of water injected and the proportion of water injected during the slaughtering process, and fully considered that the sales amount of water-injected beef should be deducted. The amount of cattle by-products and other trading habits finally determined that the amount of buffalo-injected beef produced and sold in this case was nearly 50 million yuan.

At the same time, for the employees who only participated in some crimes in this case, the procuratorial organs fully refer to the company's attendance records, and accurately determine the amount of each employee's participation in the production and sale of buffalo beef, so as to realize the unity of guilt and punishment, and ensure that punishment should be punished.

  (3) Give full play to the advantages of procuratorial integration, and coordinate comprehensive management to protect food safety.

The defendant in this case carried out large-scale and organized water injection of livestock and poultry. The amount of crime involved was large, and the harmful consequences affected many regions. The cross-regional characteristics were obvious, and the governance was difficult.

The Shanghai Railway Transportation Procuratorate takes advantage of the centralized jurisdiction over food safety cases, actively seeks the overall guidance of the higher-level procuratorial organs, implements the linkage mechanism of "cross-administrative division case handling + territorial procuratorial governance", and cooperates with the territorial procuratorial organs with the Market Supervision Administration and the public security organs. , the local government, simultaneously carry out the special comprehensive management activities of "food safety co-governance" in the agricultural product wholesale markets of the four areas involved, publicly announce the procuratorial suggestions to the relevant markets, distribute legal propaganda materials to the on-site merchants and the masses, and organize market merchants in the "legal". Signed commitments on the proposal to ensure food safety through business operations, and regularly carry out "look back" activities to continue to promote the standardized construction of food safety management in farmers' markets, guide the public to enhance food safety awareness, and build a food safety protection network.

  Production and sale of counterfeit and shoddy products by H cable company

  【Key words】

  Production and sale of fake and inferior products Substandard wires and cables Additional prosecution of unit crimes Social governance

  【gist】

  Formal manufacturers issue product certificates without quality inspection, and allow substandard products to flow into the market, which constitutes the crime of producing and selling fake and inferior products.

When procuratorial organs handle criminal cases of producing or selling fake and shoddy products, they must comprehensively review the facts and evidence of the case, prosecute the omissions and offenders in accordance with the law, and clarify the substantive harm of substandard products, strive to maintain the market economic order, eliminate potential safety hazards, and protect the legitimate rights and interests of consumers.

  【Basic case】

  On January 1, 2015, Li Moumou began to serve as the general manager of H Cable Company.

During the operation and management of H Cable Company by Li Moumou, he knew that the quality inspection department of the company issued a product qualification certificate without actually conducting quality inspection, and still let the unqualified cables produced by him leave the factory for sale.

On October 16, 2019, law enforcement officers of Jingdezhen City Market Supervision and Administration Bureau of Jiangxi Province conducted a law enforcement inspection on the warehouse in front of the tower of the Leping City Power Supply Branch of State Grid Jiangxi Electric Power Co., Ltd., and seized some wires and cables sold by H Cable Company.

According to the inspection by Huanggang Dabieshan Testing and Certification Co., Ltd., some cables produced and sold by H Cable Co., Ltd. have the DC resistance of insulated wire core marked conductors exceeding the maximum value required by the national standard, and are unqualified products. The total value of unqualified cables is nearly 600,000 yuan.

  On August 12, 2020, Li Moumou voluntarily surrendered to the public security organ and truthfully confessed the above-mentioned criminal facts.

  [litigation process]

  On January 8, 2021, the Food and Drug Environment Branch of the Public Security Bureau of Jingdezhen City, Jiangxi Province transferred the prosecution to the procuratorate for the crime of Li Moumou suspected of producing and selling fake and shoddy products.

After review, the People's Procuratorate of Changjiang District, Jingdezhen City added H Cable Company as a suspected criminal unit in accordance with the law, and on August 12, 2021, the H Cable Company and Li Moumou were prosecuted for the crime of producing and selling fake and shoddy products.

On September 10, 2021, the People's Court of Changjiang District, Jingdezhen City made a first-instance judgment, and sentenced the defendant unit H Cable Company to a fine of 300,000 yuan for the crime of producing and selling fake and shoddy products, and sentenced Li Moumou to three years in prison, suspended for five years, and a fine of 300,000 yuan.

After the first-instance judgment, neither the defendant unit nor the defendant appealed, and the judgment has come into effect.

  【Typical meaning】

  (1) Comprehensively review the factual evidence of the case, and determine that the subject is clearly aware in accordance with the law.

As a regular manufacturer, whether H Cable Company's products do not meet national standards constitute a crime, the key is to see whether it has the subjective intention of producing and selling fake and inferior products.

Although regular manufacturers perform quality inspection obligations, they may also lead to defective products entering the market due to negligence. This situation does not constitute a crime due to lack of criminal intent.

However, in this case, the procuratorial organ, through a comprehensive review of the facts and evidence of the case, and in accordance with the relevant regulations of the internal quality inspection process of H Cable Company, verified that the internal quality inspection staff of the company deliberately issued a product qualification certificate without actually testing the quality of the product, and it was regarded as the actual operation of the company. Li Moumou of the person who knew about it should be determined that the company and Li Moumou had the intention of laissez-faire to the production and sale of fake and inferior products, so it was determined that they constituted the crime of producing and selling fake and inferior products.

  (2) Prosecute the crime of missing units in accordance with the law, and ensure the effect of comprehensively cracking down on crimes of fake and shoddy commodities.

In this case, the public security organs only transferred the prosecution for the crime of Li Moumou suspected of producing and selling fake and shoddy products.

The procuratorial organ, through its own supplementary investigation, supplemented and improved evidence, verified the role of Li Moumou as the actual operator and manager of H cable company, and made it clear that his decisions and actions represented the will of the unit, for the benefit of the unit, and produced and sold fake and shoddy cables. The income of the company belongs to the unit, so this case is a crime of the unit, and H Cable Company should be prosecuted as the main body of the crime.

  (3) Focus on people's livelihood and actively perform their duties, and comprehensively manage and protect consumers' rights and interests.

The conductor resistance of the fake and inferior wire and cable involved in this case exceeds the national standard, which will increase the loss of current when passing through the wire, and aggravate the heating of the wire and cable. Hidden dangers belong to the products that do not meet the safety standards stipulated in Article 146 of the Criminal Law.

Although no serious consequences have been caused, but the sales amount is more than 50,000 yuan, according to the provisions of the first paragraph of Article 149 of the Criminal Law, he is convicted and punished for the crime of producing and selling fake and shoddy products.

After the incident, under the supervision of the procuratorial organs, H Cable Company recalled the defective products in a timely manner, conducted a comprehensive quality inspection of other related products, and took effective measures to rectify the company's operation and management, making up for product quality loopholes and effectively preventing substandard cables. to the market again.

The procuratorial organs carry out follow-up visits and carry out comprehensive social governance through active performance of their duties. While ensuring that consumers can purchase qualified and assured products, the service guarantees the healthy and orderly development of the private economy.

  The case of Kong Moumou and others producing and selling fake and inferior products

  【Key words】

  Production and sale of fake and shoddy products Common crime Passing fake as real Food safety

  【gist】

  The corn-soybean blended oil doped with cottonseed oil is sold to sesame oil manufacturers; the relevant sesame oil manufacturers should be convicted and punished for the crime of producing and selling fake and inferior products in the production process of sesame oil products.

In response to the food safety problems exposed in the case that endanger the health of the people, procuratorial recommendations were issued to promote social governance of food safety.

  【Basic case】

  On July 23, 2008, the defendant Kong Moumou established Shenyang New Moumou Food Co., Ltd. as the legal representative, and the defendant Zheng Moumou served as the production manager.

In 2017, Kong Moumou filed with the Liaoning Provincial Food and Drug Administration for the company's corporate standards for the company's "Haocaihao" brand corn and soybean blended oil. The raw and auxiliary materials of the blended oil are corn oil and soybean oil.

After that, Kong Moumou deliberately violated the registered corporate standards when making corn and soybean blended oil, adding cheap cottonseed oil to adjust the color of the oil body to a color similar to sesame oil (commonly known as "red oil"), and informed Zheng of the preparation method. so and so.

From October 2017 to August 2019, Kong Moumou, Zheng Moumou and others sold "red oil" with a similar color to sesame oil to sesame oil workshops and sesame oil manufacturers in 12 provinces and cities across the country.

In the process of promoting "red oil", Kong Moumou used the color and melting point of the oil to be the same as sesame oil as a selling point, and taught distributors such as Lu Moumou and Li Moumou to blend "red oil" into sesame oil or to use "red oil" in "red oil". ” is a method of adding a certain percentage of essence to enhance the fragrance and pretending to be pure sesame sesame oil for sale; in addition, the factory illegally sells essence to some distributors and sesame oil manufacturers or provides channels for purchasing essence to prepare fake sesame oil, and its company sells the amount of essence. It is 39330 yuan.

After verification, the defendants Kong Moumou and Zheng Moumou participated in the production and sale of fake and shoddy sesame oil products for an amount of 584,207.6 yuan.

  The defendant, Lu Moumou, is a distributor of edible oil and oil bottles, and has a wide range of sales channels for sesame oil manufacturers.

From October 2017 to August 2019, Kong Moumou promoted "Hao Cai Hao" brand corn and soybean blended oil ("red oil") through the sales channels of Lu Moumou and others.

Lu Moumou helped to publicize that the "red oil" could be used to mix into sesame oil and extract profits from sales.

In July 2017, Lu Moumou introduced to the defendant Li Moumou, who was in the business of selling sesame seeds, that the "red oil" produced by Kong Moumou could be mixed with sesame oil, and informed Li Moumou of Kong Moumou's contact information.

Li Moumou promoted the "red oil" to several sesame oil producers.

In 2017, Li Moumou promoted "red oil" to a certain Hebei edible oil Co., Ltd. operated by defendant Wang Mouchao, Xingtai, Hebei Province. After Wang Mouchao purchased "red oil" with an amount of 130,576 yuan, the defendant and his company were responsible for the production. In the process of producing sesame oil, Wang Mouda mixed the "red oil" and ethyl maltol, ethyl vanillin and other flavor components, and pretended to be sesame oil for sale, and the defendant Wang Mouyue was responsible for the sales and delivery.

After testing by the appraisal agency, all the sesame oil and sesame paste sampled by the company were unqualified.

After verification, a company in Hebei sold 277,546.39 yuan of fake and inferior sesame oil and 24,816.5 yuan of fake and inferior sesame paste.

Defendants Wang Mouchao, Wang Mouda and Wang Mouyue participated in the production and sale of fake and inferior sesame oil products for an amount of 302,362.89 yuan; defendants Lu Moumou and Li Moumou participated in the production and sale of fake and inferior sesame oil products for an amount of 130,576 yuan.

  [litigation process]

  On July 24, 2020, the Xindu District People's Procuratorate of Xingtai City, Hebei Province filed a public prosecution with the Xindu District People's Court against Kong Moumou, Zheng Moumou and others for the crime of producing and selling fake and shoddy products.

On December 31, 2020, the Xindu District People's Court made a first-instance judgment.

Defendants Kong Moumou, Zheng Moumou and others refused to accept the first-instance judgment and appealed.

On September 13, 2021, the Intermediate People's Court of Xingtai City, Hebei Province issued a final judgment and sentenced Kong Moumou, Zheng Moumou and others to fixed-term imprisonment of eight years to one year and six months for the crime of producing and selling fake and inferior products. Penalty.

  【Typical meaning】

  (1) Fighting the source of crime and protecting the "safety on the tip of the tongue" of the people.

Kong Moumou, Zheng Moumou and others, as practitioners who have been engaged in the production and sales of sesame oil for a long time, know that there is an unspoken rule in the sesame oil industry to add so-called "red oil" to sesame oil to reduce production costs, and still deliberately develop "red oil" production. Formulated the so-called "corn-soybean blended oil" with a similar color to sesame oil, and actively promoted it to promote downstream buyers to mix "red oil" with sesame oil or add essence to "red oil" to pretend to be sesame oil, Kong Moumou, Zheng The behavior of such and such people has a great impetus for the manufacture of fake sesame oil.

This behavior is a common source crime in practice. Combating the crime of producing and selling fake and shoddy products from the source is conducive to conscientiously implementing the "four strictest" requirements for food and drugs, and effectively maintaining the "safety on the tip of the tongue" of the people.

  (2) Intervene in advance, conduct in-depth communication, and properly handle cross-regional related counterfeit production and sales cases.

In order to effectively crack down on the crime of producing and selling fake and shoddy products and effectively strengthen food and drug safety supervision, the Xindu District Procuratorate actively communicated and coordinated with the market supervision department to form a high-pressure situation to crack down on food and drug safety violations. The establishment of mechanisms such as case notification and joint meetings to dig deeper into criminal clues.

At the beginning of accepting the case, the Xindu District Procuratorate dispatched prosecutors to intervene in advance and participated in the investigation and discussion of the case many times.

Xindu District Procuratorate gave full play to the advantages of case notification and early intervention, and provided legal opinions to the public security organs on the characterization of the case, the responsibility of those who produced and sold counterfeit and shoddy sesame oil, the direction of investigation, and evidence preservation, etc. Do it properly.

  (3) Give full play to the linking role of executions, and promote social governance of food safety in handling cases.

Food safety concerns thousands of households, and ensuring food safety is to safeguard people's livelihood.

Technical problems such as adulteration in edible oil and difficult detection are difficult to detect. In this case, the administrative organ, the investigation organ, and the procuratorial organ have strengthened the connection between executions, and through various efforts to break through the technical problems, effectively crack down on illegal crimes.

At the same time, the procuratorial organs have cooperated sincerely with the market supervision and management departments by formulating and issuing procuratorial suggestions to further strictly regulate the sales management of food and drug additives in their jurisdictions, and establish a traceability mechanism for additives; improve the level of daily testing and normalize information disclosure; improve food supervision mechanisms , strengthen law enforcement and punishment; strengthen food safety publicity and guidance, improve public legal awareness, etc., and jointly promote the unified management of food safety.

  The case of Shen Moumou and others producing and selling fake and inferior bottled water

  【Key words】

  Production and sale of food that does not meet safety standards Counterfeit registered trademarks Bottled water Excessive pathogenic bacteria

  【gist】

  The pathogenic bacteria in the food involved in the case seriously exceed the standard, which can be determined as "sufficient to cause serious food-borne diseases" in combination with expert opinions.

In cases of crimes endangering food safety, the procuratorial organs can intervene in the investigation in advance, guide the public security organs to investigate and collect evidence, crack down on criminal acts in the whole chain, and completely eradicate the criminal network.

Actively carry out the work of informing intellectual property rights holders of their rights and obligations, and promote the substantial participation of rights holders in criminal proceedings, so as to protect the legitimate rights and interests of intellectual property rights holders while protecting the legitimate rights and interests of consumers.

  【Basic case】

  From February 2019 to 2020, Shen Moumou and Wei Moumou used the purchased purified water filter equipment and filling equipment to set up a private water plant, and used underground well water to fill bottled water. It counterfeited pure water of well-known pure water brands and sold it to defendant Xu Moumou and others who operated bottled water or supermarkets, with a sales amount of more than 1.05 million yuan.

Defendant Xu Moumou and other 28 people knew that the bottled drinking water did not meet the national standard and belonged to a counterfeit well-known pure water brand, but the bottled water was still sold, and the sales amount ranged from more than 190,000 yuan to more than 2,400 yuan.

The defendant Zhang Moumou and others knew that the bottled water was sold with counterfeit registered trademarks, and the sales amount was more than 210,000 yuan and 130,000 yuan respectively.

Defendant Zheng Moumou and others sold counterfeit well-known pure water brand logos used for sealing bottled water to Shen Moumou and others in order to seek illegal benefits, and the sales amount ranged from more than 220,000 yuan to more than 50,000 yuan.

  After inspection by Tianjin Institute of Food Safety Testing Technology, the microbial indicators of canned drinking water extracted from the production plant involved and the impounded bottled drinking water were found to be unqualified for Pseudomonas aeruginosa.

It was determined that the trademarks involved in the case infringed the exclusive rights of registered trademarks.

  [litigation process]

  On June 9, 2021, the People's Procuratorate of Hongqiao District, Tianjin City charged Shen Moumou and Wei Moumou for the crime of producing and selling food that did not meet safety standards, and Xu Moumou and others were suspected of selling food that did not meet safety standards. XX and others are suspected of the crime of selling illegally manufactured registered trademarks, and Zhang XX and others have filed a public prosecution in the Hongqiao District People's Court for the crime of selling commodities with counterfeit registered trademarks.

On January 6, 2022, the People's Court of Hongqiao District, Tianjin City sentenced Shen Moumou and others for the crime of producing and selling food that did not meet safety standards, the crime of selling food that did not meet safety standards, and the crime of selling illegally manufactured registered trademarks. The penalty ranges from three years and six months to six months of short-term imprisonment (probation), and a fine; and Wei Moumou and others are prohibited from engaging in food production, sales and related activities during the probation period of probation.

After the first-instance judgment was pronounced, none of the defendants appealed, and the first-instance judgment took effect.

  【Typical meaning】

  The first is to accurately identify the harmfulness of pathogenic bacteria in food that exceeds the standard, and crack down on crimes in accordance with the law.

Bottled drinking water has become a daily consumer product for the people, and its quality and safety issues have attracted much attention.

The bottled drinking water seized in this case was tested and found that Pseudomonas aeruginosa exceeded the standard by more than 500 times, which obviously did not meet the national standard of GB19298-2014.

In order to further determine the harm of Pseudomonas aeruginosa exceeding the standard to the human body, the procuratorial organ and the health department held consultations, and asked relevant personnel to issue expert opinions to prove that the serious exceeding of Pseudomonas aeruginosa may cause otitis media, pleurisy, and bacteremia. , sepsis, etc., and may also cause severe epidemic diarrhea in infants, and it can be determined that the bottled water involved in the case is "enough to cause serious food-borne diseases."

Combined with the subjective and objective behaviors of the defendants Shen Moumou and Wei Moumou, it was determined that they constituted the crime of producing and selling food that did not meet the safety standards.

  The second is to guide investigation and collection of evidence in accordance with the law, and crack down on criminal acts in the entire chain.

The crime of endangering food safety and the crime of intellectual property are closely related. The procuratorial organs focus on guiding the public security organs to comprehensively collect evidence on the production sites, the source of upstream counterfeit trademark signs, and the downstream sales network, and find out whether the persons involved constitute the crime of counterfeiting registered trademarks or selling illegally manufactured registered trademarks. Identify crimes and other related crimes to ensure the entire chain of crime fighting.

In this case, Shen Moumou and others are also suspected of the crime of counterfeiting registered trademarks, the crime of selling commodities with counterfeit registered trademarks, and the crime of producing and selling food that does not meet safety standards. Article 10 of the Interpretation of Several Issues Concerning the Specific Application of Law in Criminal Cases of Fake and Shoddy Commodities stipulates that if the crime of producing and selling fake and shoddy commodities is committed, and at the same time constitutes other crimes such as infringement of intellectual property rights, the crime shall be convicted and punished in accordance with the provisions of heavier punishment.

  The third is to actively perform their duties in accordance with the law and strengthen the protection of the legitimate rights and interests of intellectual property rights holders.

After the procuratorial organ accepts the case for review and prosecution, it informs the intellectual property right holder in writing as soon as possible, serves the Notice of Litigation Rights and Obligations of the Right Holder in Criminal Cases of Intellectual Property Infringement, communicates with the trademark holder company involved in the case, and listens to opinions.

Actively guide the right holders to provide written evidence materials such as certificates of rights to the public security organs, supplement and improve the identification of the trademarks involved in a timely manner, and promote the substantive participation of the right holders in criminal proceedings.

After the case was investigated and handled, the sales volume of bottled water of the brand involved in Tianjin has returned to normal levels, effectively curbing the spread of counterfeit bottled water, avoiding “bad money driving out good money”, and effectively maintaining the normal market order.

  Production and sale of poisonous and harmful food by Chen Moumou and others

  【Key words】

  Production and sale of poisonous and harmful food Illegal addition of substances Subjective knowledge Interpretation of law by case

  【gist】

  Illegal addition of sildenafil, tadalafil and other substances that are explicitly prohibited from being added to food in food production, or knowingly selling food containing the above substances, constitutes the crime of producing and selling toxic and harmful food.

On the basis of comprehensively grasping the evidence, the procuratorial organ accurately judges the subjective knowledge of each criminal suspect, and realizes the whole chain of crackdown on the producers and sellers of toxic and harmful food.

At the same time, giving full play to the advantages of procuratorial organs in interpreting the law by case, actively carry out legal education around the case, publicize food safety laws and regulations, warn offenders and criminals, and help consumers improve food safety awareness.

  【Basic case】

  On August 28, 2017, the defendant Chen Moumou registered and established Company M to produce and sell Maca Polygonatum Powder (hereinafter referred to as "Yujinbao") in Jinnang Starch Capsules and Yuyan Rui Huangjing Puerariae Solid Drink (hereinafter referred to as "Yuyanrui"). "Yuyanrui"), Herbal Puzhen Oyster Huangjing Solid Drink (hereinafter referred to as "Puzhen Solid Drink") and other products.

In order to enhance the product's aphrodisiac, nourishing yin and other effects and increase sales, Chen Moumou purchased sildenafil, tadalafil and other substances from the Internet, and arranged for defendants Chen MouA, Chen MouB and others to produce food in a certain proportion. It is added during the process, made into capsules or granules and sold to the outside world.

From August 2017 to June 2020, Chen Moumou and others produced and sold more than 4.33 million grains (bars) of related food, with a sales amount of more than 8.1 million yuan.

  In March 2018, defendant Liu Moumou commissioned M Company to produce Puzhen solid drink.

The defendant Liu Moumou knew that the product contained sildenafil, but still sold nearly 13,000 boxes to the defendant Sun Moumou with a sales amount of more than 640,000 yuan; the defendant Sun Moumou knew that the product contained sildenafil, but still passed the The online platform sold more than 760 boxes of the product, with a sales amount of more than 170,000 yuan.

  On June 10, 2020, the production and sales site of Chen Moumou was seized by the public security organs, and 15 kinds of products including Yujinbo were detained on the spot. After being identified by China Inspection and Certification Group Hunan Co., Ltd., 14 kinds of products including Yujinbo were detected. The tadalafil component, Yu Yanrui tested the sildenafil component.

It was determined by the Changde City Market Supervision and Administration Bureau of Hunan Province that the products involved in the case produced and sold by Chen Moumou and others contained the banned pharmaceutical ingredients tadalafil or sildenafil, which were toxic and harmful foods.

  [litigation process]

  2021年3月9日,常德市武陵区人民检察院以陈某某、陈某甲、陈某乙、刘某某、孙某某涉嫌生产、销售有毒、有害食品罪向常德市武陵区人民法院提起公诉。2021年7月8日,常德市武陵区人民法院作出一审判决,以陈某某等五人犯生产、销售有毒、有害食品罪分别判处有期徒刑十四年至三年不等,罚金人民币1600万元至35万元不等。一审判决后,被告人陈某某等提出上诉。2021年12月20日,常德市中级人民法院二审裁定驳回上诉,维持原判。

  【典型意义】

  (一)依法严惩危害食品安全犯罪,保障消费者生命健康安全。西地那非、他达拉非等系治疗男性勃起功能障碍等病症的处方药,必须在医生指导下使用,不当服用可能会伤害消化系统、血液和淋巴系统、神经系统等,对服用者的健康和生命安全造成威胁。2012年3月,西地那非、他达拉非被列入《保健食品中可能非法添加的物质名单(第一批)》,禁止在保健食品中添加使用。根据《最高人民法院 最高人民检察院关于办理危害食品安全刑事案件适用法律若干问题的解释》的规定,应当认定为刑法第一百四十四条规定的“有毒、有害的非食品原料”。陈某某等人在生产保健食品过程中罔顾消费者生命健康非法添加此类物质,并销售至全国多个省市地区,对消费者造成潜在的危害,且已有多名消费者出现不良反应,其行为已经构成生产、销售有毒、有害食品罪,应当予以严惩。

  (二)准确判断嫌疑人主观明知,全链条摧毁犯罪网络。考虑到部分犯罪嫌疑人不具有专业的药学或法律知识,在判断其主观明知时,并不要求其明知生产或销售的食品内添加了西地那非等禁用物质,而是结合生活常识,明知生产或销售的产品内添加了国家禁止添加的物质,可能会对人体健康造成损害即可。本案根据刘某某长期从事保健品销售、多次与他人交流产品添加剂量及安全问题、收到产品含西地那非的检测报告后仍继续销售、销售过程中不断收到不良反应反馈等情况,综合认定其具有主观明知。在办案中,检察机关加强与执法司法机关配合,通过提前介入,引导侦查机关追根溯源,深挖犯罪,注重全链条打击犯罪,彻底铲除犯罪源头,摧毁犯罪网络。

  (三)充分发挥以案释法优势,积极参与食药安全综合治理。检察机关在依法从严惩治危害食品安全犯罪的同时,积极落实“谁执法、谁普法”的普法责任制,强化以案释法,做好犯罪预防工作。庭审阶段,积极配合法院通过抖音直播庭审过程,检察机关在庭审中充分释法说理,引发社会对食品安全问题的广泛关注与讨论。判决后,及时向社会公众通报案件办理情况,宣传食品安全法律,提示犯罪风险,多维度、多举措展现检察机关依法有力保障人民群众“舌尖上的安全”的坚定决心和积极作为。

  彭某某、李某某生产、销售有毒、有害食品案

  【关键词】

  生产、销售有毒、有害食品 工业硫磺 行刑衔接 国家农产品地理标志

  【要旨】

  在食用农产品加工、销售、贮存等过程中,使用工业硫磺等有毒、有害的非食品原料的,以生产、销售有毒、有害食品罪定罪处罚;检察机关要强化行刑衔接,增强检察监督实效;坚持宽严相济,当严则严,有力震慑危害食品安全的违法犯罪行为;通过“以案释法”等方式促进企业和个人守法经营,有效维护农产品区域公用品牌公信力。

  【基本案情】

  彭某某、李某某夫妻二人在位于四川某县的家中收购竹笋,将竹笋通过加食盐蒸煮或用食品添加剂焦亚硫酸钠浸泡后销售给竹笋加工企业。2019年4月初,因收购的竹笋数量大,为提高生产加工效率,降低成本,二人商议决定使用工业硫磺熏制竹笋。二人遂使用在网上购买的工业硫磺对未加工完成的竹笋在夜间进行熏制,并将熏制好的竹笋装入编织袋内存放准备销售。现场查获彭某某、李某某使用工业硫磺熏制的竹笋20余吨。经检验,查获的竹笋中二氧化硫残留量严重超标。

  【诉讼过程】

  2019年10月28日,四川省某县人民检察院以彭某某、李某某犯生产、销售有毒、有害食品罪提起公诉。二人自愿认罪认罚。2019年11月14日,某县人民法院作出一审判决,二被告人犯生产、销售有毒、有害食品罪,判处彭某某有期徒刑一年,罚金1万元;判处李某某有期徒刑一年,缓刑二年,罚金1万元,禁止李某某在缓刑考验期间从事食品的生产、销售及相关的活动。一审宣判后,两名被告人未上诉,判决已生效。

  【典型意义】

  (一)坚持以“严”为本,守护人民群众“舌尖上”的安全。食用农产品“从农田到餐桌”链条长、风险多,尤其像竹笋等农副产品时令性强、生产周期短,易腐败变质,个别家庭作坊或小规模企业为防腐并降低生产成本,使用工业硫磺等有毒、有害的非食品原料进行加工,易对人体神经系统、肾脏、肝脏造成损害,具有高致癌风险。工业硫磺因危害人体健康被国务院有关部门列入《食品中可能违法添加的非食用物质名单》(第一批),根据《最高人民法院 最高人民检察院关于办理危害食品安全刑事案件适用法律若干问题的解释》的规定,应当认定为刑法第一百四十四条规定的“有毒、有害的非食品原料”。检察机关对案件准确定性,严惩危害食品安全犯罪,从源头保障人民群众食品安全,也及时有效地阻止了涉案竹笋最终流向消费者餐桌。

  (二)能动履职加强行刑衔接,增强检察监督实效。检察机关主动加强与行政机关的协作配合,通过信息共享、线索通报、联席会议等方式,严格落实行政执法与刑事司法衔接机制。检察机关在参与行政执法机关个案会商时,建议市场监管部门固定相关物证,及时抽样送检;发现涉嫌犯罪后,及时向市场监管部门发出《建议移送涉嫌犯罪案件函》,督促将案件移送公安机关。应公安机关商请,检察机关介入侦查引导取证,查明案件事实。从行政调查到刑事立案侦查,检察机关将检察监督落实到案件办理全流程,确保了案件办理质效。

  (三)坚持“以案释法”,维护农产品区域公用品牌公信力。当地的“某竹笋”是获国家农产品地理标志登记保护的品牌,为打消竹笋生产、销售企业的担忧和消费者的质疑,检察机关邀请当地部分人大代表、政协委员、竹笋生产、销售企业及消费者代表旁听庭审,促使当地竹笋生产销售企业加强对农产品质量安全的认识,自觉合法经营。本案的及时查处,也给当地收购加工散户敲响了警钟,起到了震慑和预防违法犯罪的作用,有效维护了农产品区域公用品牌公信力,为服务地方经济发展提供坚实法治保障。

  四川K化肥有限公司生产、销售伪劣产品案

  【关键词】

  生产、销售伪劣产品 不合格化肥 提前介入 司法救助

  【要旨】

  涉农案件事关国家粮食安全和百姓民生福祉,检察机关要主动作为,通过提前介入引导公安机关全面取证,为指控犯罪夯实证据基础。要在依法严厉打击涉农资安全犯罪行为的同时,积极保障被害农户的权益,及时全面开展司法救助,参与社会综合治理,最大限度帮助被害农户恢复正常生产生活秩序,做好司法办案“后半篇文章”。

  【基本案情】

  2014年12月10日,符某注册成立四川K化肥有限公司,从事化肥的生产、销售。尔后,符某在未聘用任何化肥生产专业人员和化肥检验人员的情况下,通过将化肥生产原料随意配比、假冒检验员签字、伪造化肥检验报告、合格证等手段,大量生产复合氮肥、尿素、复合肥料等品种化肥,并销往四川、重庆、云南等地。2020年5月27日,四川K化肥有限公司因生产、销售不合格化肥,被重庆市垫江县农业农村委员会予以行政处罚。

  2020年10月至2021年初,四川K化肥有限公司仍将以前述方式生产的化肥以6万余元的价格销售给经销商,由经销商将化肥陆续销售给重庆市渝北区各镇558户农户,数量共计100余吨。后经重庆市计量质量检测研究院抽样检验,涉案化肥氮、磷、钾的含量未达到国家标准,均为不合格化肥产品。

  2021年5月18日,符某主动至公安机关投案,并如实供述上述犯罪事实。

  【诉讼过程】

  2021年8月9日,重庆市公安局渝北区分局以被告人符某涉嫌生产、销售伪劣产品罪向检察机关移送起诉。重庆市渝北区人民检察院经审查,依法追加四川K化肥有限公司为犯罪嫌疑单位,并于2021年12月6日以该公司和符某犯生产、销售伪劣产品罪提起公诉。重庆市渝北区人民法院于2022年1月17日作出一审判决,因犯生产、销售伪劣产品罪,判处被告单位四川K化肥有限公司罚金人民币8万元;判处被告人符某有期徒刑一年一个月,并处罚金4万元。判决后,被告单位、被告人均未上诉,判决已生效。

  【典型意义】

  (一)发挥检察机关审前主导作用,积极提前介入。本案属于危害国家农业生产安全、损害农民合法利益案件,检察机关通过两法衔接平台,收到重庆市渝北区农业农村委员会移送的涉案线索后,经研判确定该案涉农涉粮,地跨川、渝、滇三省市,受损农户500余户,案情重大取证难度大。检察机关充分发挥审前主导作用,在信息共享、初查方向与取证重点等方面与行政执法机关、公安机关开展有效衔接,主动提前介入刑事侦查,引导公安机关对涉案化肥种类、数量、金额进行精确统计,按照不同种类化肥进行分类登记、抽样、送检,并对其他证据调取、事实认定、法律适用事项提出意见建议,为指控犯罪打下坚实证据基础。

  (二)坚持罪刑法定原则,准确认定案件性质。检察机关在办理涉农案件时,要坚持“以事实为依据、以法律为准绳”原则,紧紧围绕犯罪构成要件收集、审查、认定证据。本案中,有受害农户反映其种植2万余株柑橘树等农作物因使用假化肥出现落叶、烂根现象。检察机关经实地走访并咨询农业专家,查明造成被害农户柑橘等农作物落叶、烂根系因使用高氯化肥(不宜用于柑橘等旱地作物),涉案化肥的氯含量并未超出国家标准,故难以得出涉案化肥与被害农户损失之间存在刑法上因果关系的结论,不构成生产、销售伪劣化肥罪。但犯罪行为人以不合格的化肥冒充合格的化肥,销售数额达5万元以上的,其行为构成生产、销售伪劣产品罪。

  (三)全面落实司法救助政策,促进社会治理。生产、销售伪劣产品类刑事案件中,商品的购买者既是刑事案件被害人,也是普通消费者。办案中,检察机关了解到购买假化肥的农户绝大多数为留守老人,部分才刚刚脱贫,经济条件、创收能力较差,且因农作物损失的原因无法查明,被害农户亦无法通过民事途径获得救济,检察机关及时启动司法救助程序,依法对涉案的558名被害农户全部给予司法救助,共计人民币26万余元。检察机关将打击犯罪和保护消费者权益有机结合,坚持以人民为中心的理念,践行为人民服务的宗旨,急群众所急、解群众所难,努力开展司法救助,帮助被害群众挽回经济损失,恢复正常生产生活秩序,让消费者在每一起案件中感受到公平正义和司法的温度。

  吕某某等人诈骗案

  【关键词】

  电信诈骗 “保健品” 维护老年人权益 分层处理

  【要旨】

  利用老年人重视健康、求医心切的心理,假冒专家身份进行诊疗,通过谎报病因、夸大产品疗效等欺诈手段,将低价购进的保健品高价卖给不特定老年人,具有非法占有故意,构成诈骗罪。要根据各行为人参与犯罪时间的长短、职责分工、非法获利、职业经历等,综合判断行为人责任轻重。检察机关要积极延伸办案效果,开展以案释法,提高群众识骗防骗意识。

  【基本案情】

  2019年7月至2021年4月期间,被告人吕某某伙同被告人吕某,在北京成立公司,纠集同案犯侯某某、张某某等30余人,组成固定的电信诈骗犯罪集团,假冒医疗卫生单位行政工作人员、医生、主任等身份,通过谎报病因、夸大产品疗效等欺诈手段群呼或单独拨打不特定老年被害人电话,将十几元至一、二百元购进的保健品、药品,以几千元甚至上万元的价格卖给老年人群体,以此获取非法利益。经查,2019年7月至2021年4月期间,该犯罪集团共计骗得江苏省、北京市等10余省份1010余名老年被害人人民币492万余元。

  【诉讼过程】

  2021年8月13日、9月18日,江苏省常州市武进区人民检察院分别以诈骗罪对吕某某等人提起公诉。2021年12月20日、2022年1月7日,常州市武进区人民法院作出一审判决,以诈骗罪判处吕某某等21名被告人十三年至七个月不等的有期徒刑,并处罚金。一审判决后,被告人均未提起上诉,判决已生效。

  【典型意义】

  (一)厘清案情,准确定性,精准区分诈骗犯罪与民事欺诈。老年人购买保健品被骗事件屡见不鲜,有观点认为此类事件属于低价购进高价卖出的正常市场交易行为,虽然存在以次充好的情况,但老年人也是自愿购买,没有强迫交易,不够成犯罪,仅涉嫌民事欺诈。本案中,被告人通过假冒身份进行诊疗、夸大病情使老年人陷入错误认识、夸大保健品疗效承诺可以根治等欺诈行为,迷惑老年人“自愿购买”,具有非法占有故意,符合诈骗罪构成要件,应当依法追究刑事责任。

  (二)准确区分共同犯罪中被告人的作用,坚持“轻轻重重”的分层处理原则。对共同犯罪案件,检察机关依法审查证据,准确认定事实,区分共同犯罪中各被告人的地位、作用。本案中检察机关根据各行为人参与犯罪时间的长短、职责分工、非法获利、职业经历等情况,综合判断行为人责任轻重,分类处理涉案人员。根据《最高人民法院 最高人民检察院 公安部关于办理电信网络诈骗等刑事案件适用法律若干问题的意见》,针对老年人实施诈骗犯罪属从重处理情节的规定,对该犯罪集团的首要分子、骨干成员提出十至十三年的量刑建议,对于部分参与时间短、认罪态度好、情节较轻的一般参与人员,提出判处缓刑的量刑建议。法院经审理采纳了检察机关的量刑建议。

  (3) Protect the legitimate interests of the elderly, carry out legal publicity, and extend the effect of case handling.

In this case, the criminals gained trust by asking the elderly for warmth. At the same time, they used the form of express cash on delivery to defraud the elderly who could not transfer money online.

Many elderly victims treated the fraudsters as their relatives and were deceived without knowing it. Some victims spent more than 100,000 yuan several times in just one month to buy health care products worth only a few hundred yuan from the fraudsters.

During the review process in this case, the procuratorial organ issued a procuratorial recommendation letter to the logistics company and relevant departments in a timely manner, suggesting to strengthen the review of express delivery sent by similar companies.

At the same time, comprehensively using newspapers, official accounts and other media to release and expose the case to the public in a timely manner, improve the public’s awareness of fraud and fraud prevention, persuade the elderly to go to regular hospitals for medical treatment, and actively protect the legitimate rights and interests of elderly consumers.