Research On The Problem Of The Amount Of The Crime Ofproducing And Marketing Fake Or Substandard Commodities

Along with the development of the society, the relevant provisions and judicial interpretations of the Crime of Producing and Marketing Fake or Substandard Commodities are coming out in order to deal with the problem of producing and marketing fake or substandard commodities in different period. However, the theoretical researches concerning the Crime of Producing and Marketing Fake or Substandard Commodities are numerous and jumbled. Different from the characteristics of other crimes, the criminal amount is the absolute standard of the conviction, consequently, the theory of the criminal amount of this crime is worth further probing. Furthermore, numerous articles and judicial interpretations not only fail to explain and apply the criminal amount of the Crime of Producing and Marketing Fake or Substandard Commodities systematically and religiously, but also fail to disentangle the problem of criminal the amount clearly, which results in the contradiction and the loopholes in legislation.On account of the above problems, this article is based on the historical evolution of Article 140, the Crime of Producing and Marketing Fake or Substandard Commodities of the Criminal Law of the People’s Republic of China, and combined with the relevant academic viewpoints, to explore the influence of the criminal amount on the abortive form and complicity of the Crime of Producing and Marketing Fake or Substandard Commodities. Meanwhile, in the light of juridical practice and theories of criminal law, the author’s own judgment is made. Finally, the following cognition is acquired in the progress of researching,A.In the relevant legislation, there are different standards of the criminal amount like illegal income or consumption sum. And through academic research, the consumption sum includes all illegal income which has been obtained or supposed to be obtained in the judicial interpretations. With regard to the extension, consumption sum differs from illegal income or the illegal business operation income. The extension of illegal business operation income includes consumption sum, and the extension of consumption sum includes illegal income.B.Based on different situations, which means different settlement modes of sales, the time zero of consumption sum is distinct. At the same time, the price of fake or substandard commodities is based upon different situations according to law. As a result, calculation should not limited to legal provisions in judicial practice. In this paper, several detailed problems in judicial practice are listed and through the analysis on the detailed practical problems, the consumption sum and money amounts can be applied flexibly.C.Through the analysis of the judicial interpretations of this crime and relevant academic theories, it is ensured that the Crime of Producing and Marketing Fake or Substandard Commodities has abortive form. Simultaneously, the behavior of not yet to sell the fake or substandard commodities is supposed to be deemed as abortive. And on the basis of the serious circumstances, even if the consumption sum fails to meet the legal standard, it may be identified as abortive.D.The identification of the amount is different based on the different types of accomplices of this crime. For instance, under the circumstance of a crime which has prime culprit and accessory, the conviction and sentence of the prime culprit should be based upon the total amount of the crime, but the conviction and sentence of the accessory should be based upon the participation amount. After that, typical problems in practice are listed in order to confirm the preceding theories.Ground on the preceding paragraphs, the author is negative on the conduct of taking the amount as the absolute amount standard of this crime for the reason that the amount should not be identified as the conviction standard of this crime and other factors of circumstance shall be considered to confirm the establishment of this crime. And relevant improving measures are proposed based on the insufficiency of the provisions of this crime. With regard to the amount of the Crime of Producing and Marketing Fake or Substandard Commodities, the author analyzes within his ability. The author believes that with the progressive improvement of judicial improvement, researches on the amount of this crime will be improved as well.