Criminal responsibility for producing and selling fake and inferior masks and raising the price of masks in the current epidemic situation

 

 

 

Author: Huang Shaojian Lawyer Team (Huang Shaojian, Shi Haoer)

 

 

 

Unit: Guangdong Legal Shengbang Law Firm

 

 

 

 

At the beginning of 2020, the country entered the battle against the new type of coronavirus pneumonia, and masks instantly became scarce materials. In social media, almost all agents were selling masks, with prices multiple times that of normal times. Some unscrupulous manufacturers even produced "fake masks" and sold "fake masks" without corresponding qualifications, taking the opportunity to raise prices.   

 

 

 

1、 Production and sales of fake masks

 

At 10:00 a.m. on February 4, 2020, Tianhe District People's Procuratorate received a notice from Tianhe District Public Security Branch, which cracked a case of selling fake and inferior masks and arrested two suspect on the evening of February 3.

At around 11:00 am on February 4th, the Tianhe District People's Procuratorate dispatched personnel to intervene in the case in advance. After obtaining a detailed understanding of the investigation situation of the case with the investigating personnel, the handling prosecutor proposes four guiding opinions to guide the investigation authorities in investigating and obtaining evidence. At present, the case is under further investigation. During the epidemic prevention and control period, various agencies will strictly crack down on crimes related to epidemic prevention and control in accordance with the highest inspection requirements, and contribute to winning the sniper battle for epidemic prevention and control.

1. Relevant legal provisions

Article 140 of the Criminal Law of the People's Republic of China [Crime of Producing and Selling Fake or Inferior Products]: Producers or sellers who mix or adulterate products, pass off fake products as genuine ones, pass off substandard products as high-quality ones, or pass off substandard products as qualified ones, with a sales amount of not less than 50000 yuan but not more than 200000 yuan, shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention, and shall also, or shall only, be fined not less than 50% but not more than two times the sales amount; If the sales amount is between 200000 yuan and 500000 yuan, he shall be sentenced to fixed-term imprisonment of not less than two years but not more than seven years and shall also be fined not less than 50% but not more than two times the sales amount; Those who have a sales amount of not less than 500000 yuan but not more than 2 million yuan shall be sentenced to fixed-term imprisonment of not less than seven years and shall also be fined not less than 50% but not more than two times the sales amount; Those with a sales amount of more than 2 million yuan shall be sentenced to 15 years of fixed-term imprisonment or life imprisonment, and shall also be fined not less than 50% but not more than twice the sales amount or have their property confiscated.

Judicial determination: If, during the prevention and control of sudden infectious disease outbreaks and other disasters, the production or sale of counterfeit and inferior prevention and protection products and materials, or the production or sale of counterfeit and inferior drugs used for the prevention and control of infectious diseases, constitutes a crime, the crime of producing and selling counterfeit and inferior products, the crime of producing and selling counterfeit drugs, or the crime of producing and selling inferior drugs shall be convicted in accordance with the above provisions of the Criminal Law, and the punishment shall be heavier in accordance with the law.

Article 145: Whoever produces or sells medical devices or medical hygiene materials that do not meet the national or industry standards for safeguarding human health, or knowingly sells medical devices or medical hygiene materials that do not meet the national or industry standards for safeguarding human health, which is sufficient to seriously endanger human health, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, Impose a fine of not less than 50% but not more than twice the sales amount; Those who cause serious harm to human health shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined not less than 50% but not more than two times the amount of sales;If the consequences are particularly serious, they shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and shall also be fined not less than 50% but not more than two times the sales amount or have their property confiscated.

Judicial determination: During the prevention and control of sudden infectious disease outbreaks and other disasters, the production of medical devices and medical hygiene materials that do not meet the national or industry standards for protecting human health for the prevention and control of infectious diseases, or the sale of medical devices and medical hygiene materials that knowingly do not meet the national or industry standards for protecting human health for the prevention and control of infectious diseases, do not have protective or therapeutic functions, Those who seriously endanger human health shall be convicted of the crime of producing or selling medical equipment that does not meet the standards in accordance with the above provisions of the Criminal Law, and shall be given a heavier punishment in accordance with the law.

Remarks: If the masks sold belong to the category of medical hygiene materials, they shall be convicted of the crime of producing and selling medical equipment that does not meet the standards in accordance with the provisions of the Criminal Law and relevant judicial interpretations, and shall be given a heavier punishment in accordance with the law; If the fake masks sold do not belong to medical hygiene materials, they shall be convicted and sentenced in accordance with Article 140 of the Criminal Law for the crime of producing and selling fake and inferior products.

2.Related Cases

① Selling medical devices or medical hygiene materials that knowingly do not meet the national or industry standards for safeguarding human health, which is sufficient to seriously harm human health, constitutes the crime of selling medical equipment that does not meet the standards - Zhang, Xia, and others selling medical equipment that does not meet the standards

Case essence: If the perpetrator knowingly sells contact lenses that do not meet the national standards for safeguarding human health, which are sufficient to seriously harm human health, they shall be convicted and punished for the crime of selling medical devices that do not meet the standards in accordance with Article 145 of the Criminal Law.

Case No.: (2016) Su 1181 Xing Chu No. 437

Trial Court: Case of the People's Court of Danyang City, Jiangsu Province

Source: China Judgment Document Network

② Sellers who pass off substandard products as good or pass off substandard products as qualified products, and the sales amount reaches the legal standard, constitute the crime of selling fake and inferior products - Li and Pan's case of selling fake and inferior products

Case essence: The perpetrator knowingly sold the color ultrasound equipment involved in the case as counterfeit and inferior products, with a sales amount of 1.38 million yuan. In accordance with Article 140 of the Criminal Law, the offender shall be convicted and punished for the crime of selling counterfeit and inferior products.

Case number: (2019) Lu 13 Xing Zhong 248

Trial court: People's Court of Linyi City, Shandong Province

Trial court: People's Court of Linyi City, Shandong Province

2、 Boost the price of masks

Recently, the People's Daily exposed the news of "expensive masks". A pharmacy has an N95 mask that has been on sale since the 23rd, with a purchase price of 12 yuan per bag and a sales price of up to 128 yuan. There is also a regular disposable mask, which was previously priced at 19 yuan per bag, but has suddenly increased to 68 yuan per bag since the 22nd. At a pharmacy in Beijing, 10 masks cost 850 yuan. The customer asked the merchant, "850 per box, do you have a conscience

 

1.  Relevant legal provisions

As early as the 2003 SARS outbreak, in order to lawfully punish criminal activities that hinder the prevention and control of sudden infectious disease outbreaks and other disasters, ensure the smooth progress of disaster prevention and control work, and effectively safeguard the physical health and life safety of the people, The Supreme People's Court and the Supreme People's Procuratorate jointly issued the "Interpretation on Several Issues Concerning the Specific Application of Laws in Criminal Cases Involving Obstruction in the Prevention and Control of Sudden Infectious Disease Epidemic and Other Disasters." Article 6 of the interpretation stipulates that it violates the relevant market operation and price management regulations of the state during the prevention and control of sudden infectious disease epidemic and other disasters, drives up prices, profits, and seriously disrupts market order, If the amount of illegal gains is relatively large or there are other serious circumstances, the offender shall be convicted of the crime of illegal business operations in accordance with the provisions of Article 225 (4) of the Criminal Law, and shall be given a heavier punishment in accordance with the law. Those who engage in illegal business operations and disrupt market order, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also, or shall only, be fined not less than one time but not more than five times the illegal gains; If the circumstances are particularly serious, he shall be sentenced to fixed-term imprisonment of not less than five years and shall also be fined not less than one time but not more than five times the illegal gains or have his property confiscated.

Judicial determination: Those who violate the relevant market operation and price management regulations of the state during the prevention and control of sudden infectious disease epidemics and other disasters, raise prices, seek profits, seriously disrupt market order, have a large amount of illegal gains, or have other serious circumstances, shall be convicted of the crime of illegal business operations in accordance with Article 225 (4) of the Criminal Law, and shall be given heavier punishment in accordance with the law.

2.Related Cases

① On January 23rd, the Market Supervision Bureau of Qujiang District, Shaoguan City, Guangdong Province conducted an inspection of the Chengnan Branch of Jingjing Pharmacy in Qujiang District based on reports from the public. It was found that during the process of selling masks, the parties involved required consumers to purchase the Banlangen and Cold Oral Liquid from the store in order to exchange for masks, and indirectly raised the selling price of masks through tying up, suspected of constituting an illegal act of driving up prices. The Market Supervision Bureau of Qujiang District is conducting a comprehensive investigation and handling of the facts of the case in accordance with law enforcement procedures, and will make an administrative penalty decision in the near future.

② On January 28th, the Market Supervision Bureau of Huanggang City, Hubei Province conducted an inspection of the Prekang Pharmacy in Huangzhou District, Huanggang City based on a report. It was found that the party involved raised the price of N95 masks from 19 yuan to 35 yuan from January 22nd to 27th, which is suspected of constituting an illegal act of driving up prices. The Market Supervision Bureau of Huanggang City is conducting a comprehensive investigation and handling of the facts of the case in accordance with law enforcement procedures, and will make an administrative penalty decision in the near future.

3、 Consumer response strategies

Complaint to the public security organs: During the epidemic prevention and control period, if consumers find that merchants have inflated the prices of preventive materials such as masks, disinfectants, and drugs, and the amount is relatively large, they can call 110 to report to the police, and the public security organs will handle it.

Note: If the criminal filing standards are not met, consumers can also protect their rights through the following methods:

1.Negotiate and settle with business operators:  Article 54 of the Consumer Rights Protection Law stipulates that if a consumer requests a return of a product that has been determined by relevant administrative departments to be unqualified in accordance with the law, the business operator shall be responsible for the return; Article 55 of the Consumer Rights Protection Law stipulates that if a business operator engages in fraudulent behavior in providing goods or services, they shall increase the compensation for the losses suffered according to the consumer's request. The amount of compensation increased shall be three times the price of the consumer's purchase of the goods or the cost of receiving the services; If the amount of additional compensation is less than 500 yuan, it is 500 yuan. If the law provides otherwise, the provisions shall prevail.

2.Apply for consumer mediation: Log in to the National 12315 Platform (http://www.12315. CN) to file a complaint. On the 25th, the State Administration for Market Regulation issued a notice calling for strengthening market price supervision of epidemic prevention products such as masks, disinfection and sterilization products, antiviral drugs, and related medical devices, and maintaining market price order of epidemic prevention products.

 

 

Please actively supervise the general public and promptly call 12315 to report any collusive price increases, price hikes, or other illegal behavior. Note: In the process of administrative law enforcement, if the market supervision department discovers that the amount of illegal business operations, illegal gains, or administrative penalties of merchants have reached the above standards, it shall be transferred to the public security organs for investigation. After receiving a report clue or a case transferred by the market supervision department, the public security organs shall, upon examination, meet the conditions for filing a case, and shall file a case for investigation in accordance with the law. The relevant illegal merchants and responsible personnel shall be held criminally responsible for the crime of illegal business operations.

 

 

 

 

3.Complaint to the administrative department: Article 50 of the Product Quality Law stipulates that if a product is adulterated or adulterated, or if a fake product is passed off as a genuine one, or if a defective product is passed off as a qualified product, it shall be ordered to stop production and sales, the illegally produced or sold product shall be confiscated, and a fine of not less than 50% but not more than three times the value of the illegally produced or sold product shall be imposed; If there are illegal gains, the illegal gains shall be confiscated; If the circumstances are serious, the business license shall be revoked; If a crime is constituted, criminal responsibility shall be pursued in accordance with the law. Consumers can complain to the industry and commerce department, quality supervision department, food and drug department, price department, etc. after purchasing fake masks.

 

 

4.Filing a lawsuit: Consumers can file a lawsuit in court after collecting relevant evidence, receipts, contracts, and other purchase vouchers. However, due to the current epidemic situation, it is not suitable to file a case in court. During this period, consumers can file a case online through various court trial websites. If it is not convenient to file a case online, they can choose to mail it for filing.