How to characterize the case of a diet product containing a prohibited addition of Western medicine ingredients? Selected Q&A (Seventh Batch)

Question 1: Article 280 of the Criminal Law does not clearly stipulate the threshold for criminalization for the crimes of forgery, alteration, or buying and selling of official documents, certificates, or seals of state organs, forgery of seals of companies, enterprises, public institutions, or people's organizations, and forgery, alteration, or buying and selling of identity documents.

Q&A: Article 280 of the Criminal Law does not clearly stipulate the threshold for conviction. However, from a practical point of view, it is usually necessary to meet a certain circumstance in order to constitute a crime. Main considerations: First, properly distinguish between criminal punishment and administrative punishment. For example, Article 18 of the Passport Law stipulates that "anyone who provides forged or altered passports to others, or sells passports, shall be investigated for criminal liability in accordance with law; where it is not sufficient for criminal punishment, the public security organs are to confiscate the illegal gains, detain them for not less than 10 days but not more than 15 days, and impose a fine of not less than 2,000 yuan but not more than 5,000 yuan...... "Obviously, there should be appropriate room for administrative punishment for acts of forging, buying and selling passports. In this regard, the "Zhejiang Provincial Public Security Organs' Discretionary Standards for Administrative Punishment" (revised in 2021) further stipulates that anyone who provides others with two or more forged or altered passports, or sells two or more passports, or commits it again after being punished for similar illegal acts, shall be detained for 15 days and fined not less than 3,000 yuan but not more than 5,000 yuan. Second, it is in line with the usual practice of judicial practice. For example, Article 2 of 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 Related to Theft, Robbery, Fraud, and Snatching of Motor Vehicles (Fa Shi [2007] No. 11) sets a threshold of "three or more" for the crime of forgery, alteration, or sale of motor vehicle driving licenses and registration certificates, which constitutes forgery, alteration, or sale of state organ documents.

Based on this, before the relevant judicial interpretations clarify the criteria for criminalization, the relevant provisions of the judicial interpretation [2007] No. 11 may be referred to, and the three copies (sheets/piece) may be used as the basic threshold for the crimes involved in Article 280 of the Criminal Law; Where it is necessary to upgrade the sentencing, it may be grasped in accordance with the standard of five times the threshold for conviction. Of course, when deciding whether to pursue criminal responsibility and how to determine the punishment for the conduct involved, not only the quantity should be considered, but also the importance of the official documents, certificates, and seals involved, the specific use, the consequences caused, the unlawful gains, and the circumstances of the criminal record, and other circumstances should be comprehensively considered, and the harmfulness to society should be comprehensively assessed, and the unity of subjectivity and objectivity should be adhered to, to ensure that the punishment of the crime is commensurate. For example, a person who knowingly forges, alters, or sells identity documents to another person for whom he or she has committed a crime, or purchases identity documents for the purpose of committing a crime, may be convicted and punished even if there are less than three; Conversely, for the provision of identity documents that have not been used for criminal purposes, where the standard for applying three pieces of guilt is too strict based on the specific circumstances of the case, it may also not be handled as a crime, and where administrative punishment is required, it is to be transferred to the relevant departments for handling in accordance with law.

In addition, the application of the crimes of using false identity documents or stealing identity documents as provided for in Criminal Law article 280-1 may also be appropriately handled in accordance with law with reference to the above principles.

Consultant: Zhang Bo, First Criminal Division of Chongqing Higher People's Court

Q&A expert: Song Yiyang, Criminal Division, Research Office of the Supreme People's Court

Question 2: How to characterize the case of a diet product containing prohibited Western medicine ingredients? How to grasp the slight and obviously minor circumstances?

Q&A: Regarding the characterization of cases in which the prohibited addition of Western drug ingredients was detected in weight loss products, it is not possible to generalize, and it is necessary to distinguish whether the products sold are food or drugs. Weight loss products include both weight loss health food and weight loss drugs. If the product involved in the case is food (health food), it may be characterized as the crime of producing or selling toxic or harmful food in accordance with article 144 of the Criminal Law; If the products involved in the case are drugs, the crime of producing, selling, or providing counterfeit drugs may be determined in accordance with article 141 of the Criminal Law.

The key to distinguishing between food and drug is whether there is a "disease prevention and treatment function", which is manifested in whether the label or instruction manual involves disease prevention and treatment functions, and whether there are indications or functional indications. In specific cases, it can generally be judged by the product approval number, whether the product description stipulates indications or functional indications, usage and dosage, and other appearance marks. If the product label is unclear, it can be judged by the name in which the operator advertises and sells the weight loss products involved in the case. When the product identification is consistent with the external publicity, the product attributes can be determined directly according to the identification. When the labeling of a product is inconsistent with the external publicity or the labeling is not clear, it shall be determined whether it is food or a drug in accordance with the performance of the product advertised externally by the actor and the purpose for which the purchaser purchased and used the product. For example, in Case No. 1531 of the Criminal Trial Reference, "Zhong Mouben's Case of Selling Toxic and Harmful Food", the attributes of the products involved in the case could not be defined by the appearance of the approval number, product description and other appearance marks. Zhong originally sold the product in the name of "aphrodisiac and kidney supplementation", but did not publicize the therapeutic function and therapeutic effect, and the consumer purchased and used it for the purpose of "sexual health care" rather than treating diseases, so the product involved in the case should be determined to be a health food. In this case, because the health food involved in the case was tested to contain sildenafil, it was determined that Zhong Mouben constituted the crime of selling toxic and harmful food.

In practice, a comprehensive determination should be made based on subjective and objective circumstances such as the number of sales made by the perpetrator, the amount of sales, the length of time for sales, and whether the perpetrator has received administrative punishment or criminal punishment for similar conduct.

Consultant: Yin Shiqiang, Criminal Division 1, Shandong Provincial High People's Court

Q&A expert: Xiao Feng, Criminal Division 1 of the Supreme People's Court

Question 3: How to determine the value of wild animals involved in the crime of illegal hunting?

Q&A: The determination of the value of the wildlife involved in the crime of illegal hunting is a thorny issue in judicial practice. For the precious and endangered wild animals and their products under national key protection, in addition to the market value, it is more important to consider the preciousness and endangerment of the species, as well as the related ecological functions and scientific research value. The wildlife protection department under the State Council has promulgated the Methods for Assessing the Value of Wild Animals and Their Products and the Measures for Assessing the Value of Aquatic Wild Animals and Their Products, clarifying the value standards and accounting methods for the overall value of wild animals, the value of their products, the value of artificially bred wild animals, and the value of eggs and eggs. For rare and endangered wild animals under national key protection and their products, there is no doubt that these two assessment methods should be applied for accounting. However, in practice, the targets of the crime of illegal hunting are generally the "three animals" (terrestrial wild animals with important ecological, scientific, and social value) listed in the List of Terrestrial Wild Animals with Important Ecological, Scientific and Social Value, and terrestrial wild animals under key local protection. For example, the appraised value of sparrows is 300 yuan per sparrow, while in practice the transaction price is generally around 20 yuan, a difference of nearly 15 times. Therefore, if the targets of the crime of illegal hunting, i.e., the "three animals" and terrestrial wild animals under key local protection, are all accounted for according to the assessment standards and methods, the value will be generally too high, thus actually lowering the threshold for the crime of illegal hunting, and it is bound to expand the scope of criminal crackdown, making it difficult to achieve the commensurate punishment of criminal responsibility, and it is also inconsistent with the public's simple concept of fairness and justice. Based on the above considerations, Article 15 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Destruction of Wildlife Resources (hereinafter referred to as the "Interpretation") clarifies the rules for determining the value of wildlife and the products thereof. Specifically, the first provision stipulates that the value of precious animals and their products prohibited from import and export by the state, and rare and endangered wild animals and their products under national key protection, shall be calculated in accordance with the assessment standards and methods formulated by the wildlife protection department of the State Council. The second provision is that the value of terrestrial wildlife, wildlife under key local protection, and other wildlife and the products thereof that have important ecological, scientific, or social value is to be determined on the basis of the amount of stolen goods; Where there is no amount of stolen goods sold, the amount of stolen goods sold is difficult to verify, or the amount of stolen goods is determined to be clearly low, it is to be calculated on the basis of market prices, and when necessary, it may also be accounted for with reference to relevant assessment standards and methods. In addition, Article 16 of the Interpretation clarifies the rules for dealing with the value of animals and their products involved in crimes of destroying wildlife resources when it is difficult to determine, including various options such as appraisal by judicial appraisal institutions, certification by price certification agencies, or reports issued by relevant departments. In summary, the value of wild animals involved in the crime of illegal hunting should be determined in accordance with the provisions of Articles 15 and 16 of the Interpretation.

Consultant: Shen Chunfu, Environmental Resources Division, Henan Provincial High People's Court

Q&A: Zou Tao, Environmental Resources Tribunal of the Supreme People's Court

Question 4: Can the plaintiff file two conflicting but related claims against the same defendant at the same time in one case?

Q&A: It can be dealt with in one case. In theory, a situation where the plaintiff files two conflicting but related claims against the same defendant at the same time is usually called an objective preparatory consolidation lawsuit. In this case, if the priority application is upheld, the reserve application does not need to be heard; If the application for priority is not upheld, the application for reserve shall continue to be heard and adjudicated. The theory of objective preparation for consolidation of litigation is in line with the principles of litigation convenience and economy, and is conducive to the one-time settlement of disputes, which has been explored and applied in judicial practice and has achieved positive results. For example, in the (2019) Civil Ruling of the Supreme People's Court Min Zai No. 152, the retrial applicant, who was a shareholder of a company, argued that the resolution of the shareholders' meeting of the company harmed its interests, and in order to obtain full relief in the case, it filed two different claims based on the invalidity and validity of the resolution, respectively, and the court of first instance ruled to dismiss the lawsuit on the grounds that the claims were contradictory and therefore could not determine the specific claims. The Supreme People's Court held in the retrial that although the applicant's request for confirmation of the invalidity of the resolution of the shareholders' meeting and the confirmation of the ownership of the relevant shareholders' rights and interests arising from the resolution of the shareholders' meeting were contradictory, the elements of the litigation were complete and both met the standards for filing a case under the Civil Procedure Law, and the parties could take a step forward to assert the latter claim when the former claim was not supported, and the lawsuit should not be dismissed on the grounds that the claim was unclear.

In addition to the above-mentioned circumstances, the theory of objective preparation for consolidation can also be applied to situations such as a request for the return of the original and a claim for damages if the original is lost, a confirmation of the acquisition of ownership by a transaction, and a claim for liability for breach of contract if the ownership is not obtained. In judicial practice, we can further strengthen exploration in accordance with the basic spirit of the Civil Procedure Law and other laws, combined with the achievements already made in theory and practice, and constantly improve the relevant rules to give full play to their due functions and effects.

Consultant: Li Yuze, Fourth Civil Division, Intermediate People's Court of Suqian City, Jiangsu Province

Q&A expert: Qin Andong, First Civil Division of Jiangsu Provincial High People's Court

Source: People's Court Daily

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