| In recent years,the market rules and the risk of food safety have become the focus of the society.According to the 2017 public safety research report released by the Chinese Academy of Social Sciences,the potential threat of shoddy products is becoming one of the public's heart diseases.In the provisions of our criminal law,the crime of undermining the order of the socialist market economy is in the third chapter,second only to the crime of endangering national security and public security,before the violation of personal rights,crime of property right;the crime of producing and selling fake and inferior products is the first charge to undermine the socialist market economic order.We know that the crime of criminal law is generally divided by the type of object,and the degree of social harmfulness is arranged in turn,which at least shows the harmfulness of this crime and the degree of radiation public security and personal important rights and interests domain.The crime of producing and selling fake and shoddy products is the basic charge of the crime of producing and selling fake and inferior commodities,and the criminal law uses the law of law to form a network to protect the basic rights and interests of the state,society and individuals,it has highlighted the judicial requirements of clearly defining the subjective and objective elements of the crime.In addition,the legislators set different charges according to the nature of the object in the same way of production and sales,and indeed bring the difficulty of identifying the target of cross-competing or overlapping,some scholars of criminal law also criticized the heavy penalty orientation brought by such legislation.Based on this,this article attempts to clarify the subjective and objective elements of the crime,and clear its basic role in the system of the category of charges,and clearly related to the logic of other specific charges.This article is divided into four parts,about 40,000 words :The first part,explain the basis and problems of the discussion.Simply sum up the illegal composition of specific charges of Article 140 of the Criminal Law,and lay a standard platform and theoretical foundation for the following detailed analysis of the specific elements of the mode of production and sales behavior and objects;in view of the practice of conviction and sentencing,the judicial differences and causes related to the elements of behavior object,means and sales amount,as well as the judicial choice to deal with the overlap of law articles and the coopetition of crime are discussed;centering on the normative analysis of the constitutive requirements of this crime,the author sorts out the viewpoints andpoints of contention in the criminal law circle,and sets out the key scope for further discussion.The second part,specifically define the meaning and type of the behavior of producing and selling fake and inferior products,and analyze the nature of the charges set up in Article140 of the Criminal Law on the basis of clear characteristics of the crime.First of all,the original meaning of production refers to the act of making raw materials or semi-finished products into finished products that can be sold or used directly.The production of this crime refers to the act of manufacturing fake and inferior products;sale refers to the sale,lease,or any other means of providing the market or consumers with shoddy products.Based on the objective view of criminal law,the sale is the key behavior that the fake and inferior products enter the market to destroy the law order and infringe the rights and interests of others.Secondly,the detailed analysis of the criminal law doping adulteration,to counterfeit real,shoddy,unqualified products to pass off as qualified products specific way,pointing out its relevance and cross-legislative characteristics.The third part,starting from the need to protect legal interests,clearly define the meaning of shoddy products and the results of the inflow of society.Objects and outcomes are important objective factors that determine a behavior's harm to society.Therefore,it is an important part of qualitative behavior to judge the nature of product's pseudo or inferior.Bogus refers to the products that impersonate others,or raw materials for production,semi-finished products almost no national or industry standard requirements;the inferior is the raw materials and semi-finished products which are produced by low manufacturing technology or not conforming to the quality requirements,and the production is obviously not up to the requirements of the industry standard.In view of the judicial interpretation that the amount of sales of this crime is extended to the value of crime,some people advocate that it should be collectively referred to as the amount of the operation.This article holds that the value of crime should be regarded as the quantity of the crime in special circumstances the prime is positive.On this basis,according to the different objects,the discussion of the rules of competition and punishment is introduced,and the discussion of the crime of attempted crime should be led out according to the amount and other consequences.The fourth part,the presumption of production and sale of fake and shoddy products,cognitive and will factors.Based on the summary and evaluation of the crime nature around the behavior of producing and selling fake and inferior products,the producers are analyzedand inferred according to the objective elements of behavior,what the seller " knows or ought to know ";on the basis of a clear understanding of factors,this paper analyzes the content and nature of the specific will of counterfeiters,and draws a general conclusion : the main body of profit is a hope for the destruction of market order,a laissez-faire attitude toward the rights and interests of consumers.Although the theory of normative criminal law generally holds that the article implies the purpose of profit,this paper still thinks that the criminal law should not set this additional element to change the scope of criminal law blindly. |
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