The new coronavirus is spreading all over the world. As the earliest main battlefield, my country has played a passionate movement in the tenacious struggle between humans and viruses. Masks, as the most effective and necessary medical equipment to help the public and medical personnel to prevent coronavirus infection, have been in short supply when the capacity of masks in the early stage of the outbreak is insufficient. Correspondingly, a large number of people from all over the country, both online and offline, can or claim to be able to get masks. Among them, although there are a lot of mask manufacturers that comply with the law, but there are also a lot of flies. In this article, the author will analyze the possible offenses according to different production or sales of false masks.

Scenario 1: robbery while on fire

(The crime of producing and selling fake and inferior products/the crime of selling counterfeit registered trademarks)

During the duration of the epidemic, out of the disease prevention and protection needs of the masses, people who go out are required to wear masks, which makes non-medical masks become hot. Many counterfeiters and counterfeiters saw the opportunity and hoped to make a lot of money. The Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice jointly issued the “Opinions on Punishing and Preventing and Controlling Violations of Pneumonia Caused by New Coronavirus Infection” (hereinafter referred to as the “Opinions”) jointly issued on February 6, 2020. During the period of epidemic prevention and control, if the production and sale of fake and shoddy prevention and protection products and materials comply with the provisions of Article 140 of the Criminal Law, the amount of up to 50,000 yuan will constitute the crime of producing or selling fake and shoddy products. imprisonment.

In the author's opinion, because the producers and sellers will consider the sales of masks in the process of manufacturing and selling fake and inferior masks, in many cases, the trademarks of famous mask manufacturers will be added to the masks, thus constituting the sale of counterfeit registered trademark masks. Happening. The Opinion does not mention this kind of situation, but there is no doubt that this kind of behavior will infringe the right of the legitimate merchants to use the trademark and the legitimate rights and interests of consumers. Article 140 of the Criminal Law stipulates that if the sale of counterfeit and shoddy goods is more than 50,000 yuan and less than 200,000 yuan, it shall be punished with fixed-term imprisonment or detention of less than two years; and Article 214 of the Criminal Law provides that the sale of goods that are known to be counterfeit registered trademarks will cost more Large (according to Article 2 of the Interpretation of Intellectual Property in 2004, the large amount in this crime means more than 50,000 yuan), imprisonment or detention of three years or less, and a fine or a single penalty. This also means that the two crimes overlap in terms of sentence and should not be ignored. Therefore, if the production and sale of fake and inferior masks and counterfeit registered trademarks are sold for up to 50,000 yuan, two offenses will be committed at the same time, which constitutes an imaginary competition and chooses one felony.

Scenario 2: Stealing beams for columns

(The crime of producing and selling medical equipment that does not meet the standards)

In the early stage of the epidemic, due to the rapid increase in the number of infected people, the pressure on the medical system has increased sharply, and the demand for various medical materials, especially masks, has greatly increased. Medical grade masks (mainly refers to KN95, N95 and above particulate protective masks and medical protective masks in this epidemic) are more difficult to prepare and obtain than ordinary masks due to their good protective effect and splashproof characteristics, which also gives In light of the opportunities available to criminals, physical stores and e-commerce platforms across the country have found counterfeit and inferior medical masks. According to a circular issued by the General Administration of Market Supervision at the press conference of the Joint Defense and Joint Office of the State Council, as of March 12, the national market regulatory authorities had found a total of 80.66 million masks in question.

According to the Opinions, during the epidemic prevention and control period, the production of medical equipment such as medical masks that do not meet the national and industry standards for the protection of human health, or the sale of medical equipment that is known not to meet the standards is enough to seriously endanger human health. According to the provisions of Article 145 of the Criminal Law of the People's Republic of China, the conviction and punishment for the crime of producing or selling medical equipment that does not meet the standards can result in life imprisonment up to the maximum penalty.

The author believes that in view of the fact that the crime of producing and selling medical equipment that does not meet the standards is based on whether it is harmful to human health and the specific degree of harm, it does not take the amount into account, and manufactures and sells fake and inferior medical masks in the handling of this epidemic. Of criminals are slightly wrong. This crime belongs to a specific dangerous offender, so the punishment is lighter for cases where there is no actual harm result. If there is no harm to human health, it is only punishable by imprisonment of less than three years and a fine of not less than 50% of the sales amount. This means that the criminals who have produced or sold huge or particularly large amounts of counterfeit and shoddy medical masks but have not yet caused damage to the human body are far less punished than criminals who produce and sell ordinary masks with the same amount of money. . As mentioned earlier, the latter constitutes the crime of producing or selling fake and inferior products. According to the provisions of Article 140 of the Criminal Law, the sentence is completely determined by the amount. If the amount is more than 2 million yuan, it can be sentenced to 15 years in prison or life imprisonment. In terms of social harm, the harm caused by the production and sale of counterfeit and shoddy medical devices is never inferior (or even higher) than that of ordinary counterfeiting. Therefore, when prosecuting such criminals who manufacture and sell counterfeit and shoddy medical devices, the application of the crime of producing or selling counterfeit and shoddy products should not be ruled out, but a serious crime should be selected.

Situation 3: out of nothing

(fraud)

According to (2020) Su 0303 Xingchu No. 69 judgment, during the epidemic prevention and control period, Liu claimed to have sold masks, deceived the trust of the victim Jiangmou by fictitious facts in the case of knowing that he had no supply, and defrauded the victim Jiangmou five times. The money paid for the purchase of masks was more than 7,000 yuan. According to the court's determination, Liu Mou committed fraud by taking advantage of the hard demand for medical supplies in short supply during the epidemic prevention for the purpose of illegal possession. The amount was large and violated Article 266 of the Criminal Law of the People's Republic of China, which constituted the crime of fraud and was sentenced to fixed-term imprisonment. Six months, and a fine of 5,000 yuan.

Such cases have emerged in recent times, and the use of social platforms to disseminate information and conduct transactions is a rebirth of traditional telecommunications frauds borrowing the epidemic prevention shell in a special period. According to the author's statistics, since the beginning of the epidemic prevention and control, there have been 31 verdicts for such fraud cases that have been published online in the judgment documents, of which the highest amount involved is 341,800 yuan, which seriously violates the property security of citizens and social groups. Because the relevant personnel can not obtain masks in time and cause greater danger.

In the author's view, such telecommunications fraud criminals use the eager psychology of the people to prevent and control the epidemic situation, and fictional facts to gain the trust of the victims. Their subjective viciousness is greater, and they must not be condoned. The Interpretation of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Fraud stipulates that fraud, disaster relief and emergency rescue, flood control, preferential treatment, poverty alleviation, immigration, relief, and medical money shall be in accordance with Article 266 of the Criminal Law Provide for severe penalties where appropriate. At present, the country is in a special period of epidemic prevention and control. Masks are all the necessities for citizens who need to go out. The funds used to purchase masks should also be regarded as epidemic prevention funds, which can be interpreted as medical money in this article. . Therefore, criminals who fraudulently purchase mask funds should be regarded as severely punished for the fraud of medical money and articles in this article.

The epidemic is like a mirror, which not only reflects the unity and mutual assistance of the people and the selfless dedication of medical staff, but also inevitably reflects the greedy and dirty side of human nature. Here, the author advises Xitu to pass the epidemic prevention materials to make the country difficult to make money: Tianri Zhaozhao, Tianli Zhaozhang; Tianwang is restored, and it is sparse but not lost.