Discussing The Crime Of Selling Counterfeit Drug

Recent years,the occurrence rate of the crime of producing and selling counterfeit drug keeps a high rate.And there are many issues emerge in the practice of enforcing the criminal article regarding this crime.The Eighth Criminal Law Amendment amended this article,it then can be triggered only by illegal behavior,which made the article regarding this crime can be applied to more cases.The Supreme People's Court and the Supreme People's Procuratorate announced the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of Law in the Handling of Criminal Cases concerning Endangering Drug Safety.The case of Yong Lu exposed many practical issues regarding the crime of producing and selling the counterfeit drug,such as the determination of the crime and the parallel of the criminal law and the administrative regulation regarding this illegal behavior.This article aims to discuss and analyze the determination of the crime of producing and selling counterfeit drug based on the case analysis of Yong Lu.The Second part gives a brief introduction to the basic facts and the issues of this case.The Third part analyzes the issues of this case based on the constitutive elements of this crime.First,discussing the standard of counterfeit drug,and holding that the drug in this case is not proper to be determined as counterfeit drug.Then discussing whether the behavior in this case should be regarded as selling.The last,discussing the subjective fault,based on the cognitive elements,the constructive intent and the issue of the knowledge of breaking the law by introducing some cases of America as comparative study.The Forth part discusses whether the illegal act is punishable by the criminal law.First of all,based on the crime essence,the behavior of Yong Lu of not punishable as it did not cause serious social harmfulness.Then,Yong Lu did not reach the line of crime based on the modesty of criminal law,and the scope of crime should follow the ratio principal to achieve the humanity protection.The Fifth part discusses how to do value judgment when here is a conflict of legal interests.It should be based on the rank of law interest to determine a crime for achieving the function of criminal law.