Research On The Judicial Application Of The Crime Of Producing,Selling And Providing Counterfeit Drugs

The Criminal Law Amendment(XI)2020 further amends this crime,but there are still some issues that need to be studied.Starting from the legislative overview of this crime,this article discusses the constituent elements of this crime,the special form of crime,and the boundary between crime and other crimes.In terms of subjects,the subject of Article 1 is the general subject,and the subject of Article 2 is the unit with the authority to use drugs and the personnel with drug use qualifications;In terms of the object of the crime,this crime belongs to the complex object,including the state’s supervision and management order of drugs and the public’s right to life and health,and there is no distinction between priority and secondary;In the subjective aspect,the subjective guilt aspect of this crime includes direct intent and indirect intent.In terms of subjective content,this crime does not require the purpose of profit,and it is determined whether the perpetrator is subjectively aware by taking objective facts as the main and supplemented by the presumption of physical events;In the objective aspect,production includes the packaging,research and development,production,processing and other acts of drugs,sales refers to the act of transferring drugs to a third party for compensation,and provision refers to the act of providing drugs to others for use;In terms of attempted crime,the theory of infringement of legal interests is used as the standard for determining the attempted crime.For the crime of producing counterfeit drugs,the standard is when the perpetrator has already begun to make counterfeit drugs but has not finished them,and for the crime of selling counterfeit drugs and providing counterfeit drugs,the standard is whether the counterfeit drugs have actually been transferred;In the determination of accomplices to this crime,the scope of accomplices in this crime includes the provision of raw materials,auxiliary materials,certificates,funds,venues,sales channels,transportation convenience,live broadcast platforms,celebrity endorsements,and acts of false drug advertising and publicity of counterfeit drugs.The accomplice must subjectively know that the drug is counterfeit and have two-way communication with the perpetrator.In the distinction of related crimes,the boundary between this crime and the crime of producing,selling,and providing inferior drugs,the crime of producing and selling fake and shoddy products,the crime of fraud and the crime of endangering public safety by dangerous methods is distinguished from the aspects of incriminating standards and constituent elements.