1. Identity of the subject
The subject of this crime is the producer and the seller, and if the perpetrator does not have the subject status of the producer and the seller, this crime cannot be constituted.
2. The nature of the act
There are four main types of behavior in this crime: adulteration, passing off fake as genuine, shoddy, and passing off substandard products as qualified products. Whether there is any of the above-mentioned behaviors, the criteria for judging it are generally based on the national quality standards for a certain product.
Therefore, when it comes to this crime, it is generally necessary to conduct an appraisal and determine the nature of the product through the appraisal report. When making a defense, the appraisal report may be reviewed in detail to debate the important evidentiary materials for determining that the perpetrator's conduct constitutes the crime. When cross-examining evidence, the appraisal report may be reviewed for flaws in terms of the appraisal procedure, the method on which the appraisal is based, the legality of the identity of the appraiser, and the selection of appraisal materials.
3. Subjective intentionality
This crime requires subjective intent, and there may be such a situation in judicial practice, that is, the producer or seller may not know that the products they produce or sell are counterfeit and shoddy products, and if this is indeed the case, the perpetrator does not constitute a crime.
Whether it is intentional shall be determined in light of the actor's own cultural level, the actor's work experience in the relevant industry, sales, and purchases, and the records of other relevant witnesses, such as purchasers and staff employed to participate in production, shall be determined in detail when defending the defense.
4. The amount of defense viewpoint
According to article 140 of the Criminal Code, there are three sentencing ranges for this crime, which are mainly based on the amount of counterfeit and shoddy products. Therefore, the defence lawyer should start with the amount of the criminal act and reduce the amount involved in the criminal act as much as possible. Since the amount of the criminal act is mainly based on the appraisal report, in order to reduce the amount of the criminal act, it shall be reviewed from the quantity of the counterfeit and shoddy products involved in the criminal act, the valuation basis of the appraisal report, and so forth.
If, based on the evidence in the case, the sales amount of the counterfeit and shoddy products involved in the case does not meet the standards for filing a case or cannot be determined, the perpetrator shall not be guilty.
1) The sales amount and the unsold amount do not meet the criteria for filing a case.
2) The amount of sales involved in the accomplice does not meet the criteria for filing a case. In joint crimes, some accomplices, especially accomplices, are only liable for the quantity and amount of counterfeit and shoddy products in which the individual participated. Even if the principal offender sells enough money, the accomplice's sales amount may not meet the criteria for filing a case or cannot be determined.
3) The evidence in the case is contradictory, and the sales amount cannot be determined.
5. Arguments for the defense of completed and attempted attempts
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 of the Production and Sale of Counterfeit and Shoddy Commodities stipulates: "Where counterfeit and shoddy products are still on sale and the value of the goods reaches more than three times the sales amount provided for in Article 140 of the Criminal Law, it shall be convicted and punished as the crime of producing or selling counterfeit products (attempted). Therefore, the defence of this crime often has the question of completed and attempted. If the product is not sold, the amount of the product not sold relates only to the amount of the criminal attempt. Special attention should be paid to the fact that the value of the two properties cannot be simply added.