Inbound number.
*: Supreme People's Court.
Tong Mou gas *** Li, Xie Mouquan, Xie Mouxiang illegal business case.
The act of dealing in qualified drugs without a license does not constitute the crime of illegal operation
Keyword. Criminal offense of illegal business operation, medical oxygen, no drug business license, not guilty.
Basic facts of the case. Medical oxygen was written into the pharmacopoeia in 1953, and medical oxygen standards can be found in the 2005, 2010, 2015, and 2020 editions of the pharmacopoeia. The name of the medical oxygen drug is oxygen, the dosage form is the dosage form of medical gas, the drug is classified as a chemical drug, and the state implements the approval number management. On March 17, 2008, Nanfang County Xin was incorporated, and on September 5, 2014, the company's name was changed to Nanfang County Tong Gas *** referred to as "Tong Company"), the registered shareholders are the defendants Li, Xie Mouquan, Xie Mouxiang and Zhou, respectively, accounting for % of the shares of Tong Company, the company type is a limited liability company (natural person investment or holding), and the business scope approved by industrial and commercial registration is oxygen and acetylene retail. On March 19, 2009, Xin applied to change the business scope to oxygen (medical oxygen, industrial oxygen), acetylene, carbon dioxide, nitrogen retail, and in April of the same year, the Nanfang County Administration for Industry and Commerce approved the change of registration. After the establishment of a company, there are no qualified pharmaceutical technicians and business premises, equipment, storage facilities, sanitary environment and other software and hardware conditions stipulated in the Drug Administration Law for drug management. After the establishment of a certain company, without applying for a drug business license, it used its own oxygen cylinders to purchase qualified medical oxygen from the permanent company and Changping company for sale. During the period from the establishment of a certain company to May 11, 2018, the defendant Li served as the legal representative, responsible for the overall management of the company, and directly participated in the purchase and sale of medical oxygen and the settlement of the payment of the oxygen-using hospitals contacted, and on May 11, 2018, the legal representative was changed to the defendant Xie Mouxiang. Defendants Xie Mouquan and Xie Mouxiang directly participated in the purchase and sale of medical oxygen and the settlement of payments for their respective oxygen-using hospitals. The amount of medical oxygen business of a certain company is 6914543 yuan, the amount of medical oxygen sold by defendant Li is 1514161 yuan, the amount of medical oxygen sold by defendant Xie is 5080377 yuan, and the amount of medical oxygen sold by defendant Xie Mouxiang is 320005 yuan.
The People's Procuratorate of Shunqing District, Nanchong City, Sichuan Province accused Li, Xie and Xie Mouxiang of committing the crime of illegal business operation and filed a public prosecution with the people's court.
On September 10, 2021, the Shunqing District People's Court of Nanchong City rendered the (2020) Chuan 1302 Xingchu No. 330 Criminal Judgment: 1. The defendant unit Nanfang County Tong XX Gas *** committed the crime of illegal business operation and was sentenced to a fine of 1 million yuan; 2. Defendant Li X committed the crime of illegal business operation and was sentenced to seven years imprisonment and a fine of 200,000 yuan; 3. Defendant Xie X committed the crime of illegal business operation and was sentenced to six years imprisonment and fined 150,000 yuan; 4. Defendant Xie Mouxiang committed the crime of illegal business operation and was sentenced to two years imprisonment and a fine of 50,000 yuan; 5. The medical oxygen sales money that has not yet been recovered by the defendant unit Nanfang County Tong is to be recovered; Sixth, in addition to the frozen southern county through a gas *** bank deposit 111517In addition to 1 yuan and 1 mobile phone of the defendant Li, 208 oxygen cylinders and other items seized by the public security organs are to be confiscated, and the seizing organs are to handle them in accordance with law.
After the verdict was announced, the defendant unit of the original trial, Nanfang County, Tong Gas***, and the defendants Li, Xie Mouquan, and Xie Mouxiang were not satisfied and appealed. On May 9, 2022, the Intermediate People's Court of Nanchong City, Sichuan Province, rendered the (2021) Chuan 13 Xingzhong No. 325 Criminal Judgment: revoke the original judgment and declare the defendant unit of the original trial, Nanfang County, Tong Gas***, and the defendants Li, Xie Mouquan, and Xie Mouxiang not guilty. The judgment has entered into force.
Reasons for the Adjudication. The effective judgment of the court held that the original trial court followed Article 225 (4) of the Criminal Law of the People's Republic of China and Article 7 of the Interpretation of Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Endangering Drug Safety (Fa Shi 2014 No. 14) issued by the Supreme People's Court and the Supreme People's Procuratorate in 2014.
In the provisions of paragraphs 1 and 3, it is correct to find that the defendant unit in the original trial, a gas company in Nanfang County, violated the national drug administration laws and regulations, did not obtain a drug business license, and illegally traded drugs, which constituted the crime of illegal business operation and was a particularly serious circumstance; At the same time, it was determined that during the period when a gas company in Nanfang County was engaged in illegal business operations, Li, as the legal representative, played an organizational role and directly participated in illegal business activities, and was the person in charge who was directly responsible and should bear criminal responsibility; Defendants Xie Mouquan and Xie Mouxiang directly carried out illegal business operations and are directly responsible persons, and it is also correct that they should bear corresponding criminal responsibility for the amount of their participation in the business. Since the Supreme People's Court and the Supreme People's Procuratorate issued a new Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Endangering Drug Safety (Gao Jian Fa Shi Zi 2022 No. 1) during the trial of this case, which came into force on March 6, 2022, Article 21 of the Judicial Interpretation repealed the aforesaid judicial interpretation (Fa Shi 2014 No. 14). Therefore, according to Article 3 of the Provisions of the Supreme People's Court and the Supreme People's Procuratorate on Issues Concerning the Temporal Effect of the Application of Criminal Judicial Interpretations, "for acts that occurred before the implementation of the new judicial interpretations, and there were relevant judicial interpretations at the time of the acts, it shall be handled in accordance with the judicial interpretations at the time of the acts, but the application of the new judicial interpretations is beneficial to the criminal suspects or defendants, the new judicial interpretations shall apply" and the Article 200, Paragraph (2) of the Criminal Procedure Law of the People's Republic of China stipulates that "if the defendant is found not guilty in accordance with law, a not-guilty verdict shall be made", and the appellant unit (defendant unit of the original trial) Tong XX Gas Company and the appellants (defendants of the original trial) Li, Xie and Xie Mouxiang shall be declared not guilty.
The gist of the referee. After the implementation of the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Endangering Drug Safety" (Gao Jian Fa Shi Zi 2022 No. 1), the act of dealing in qualified drugs without a license shall not be included in Article 225, Item 4 of the Criminal Law for legal evaluation.
Associate indexes. Article 225 (4) of the Criminal Law of the People's Republic of China.
Article 200 (2) of the Criminal Procedure Law of the People's Republic of China.
Article 7 of the 2014 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 Endangering Drug Safety (Fa Shi 2014 No. 14).
On March 6, 2022, the Supreme People's Court and the Supreme People's Procuratorate issued the Interpretation of Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Endangering Drug Safety (Gao Jian Fa Shi Zi 2022 No. 1).
Article 3 of the Provisions of the Supreme People's Court and the Supreme People's Procuratorate on Issues Concerning the Temporal Effect of the Application of Criminal Justice Interpretations.
First instance: Shunqing District People's Court of Nanchong City, Sichuan Province (2020) Chuan 1302 Xingchu No. 330 Criminal Judgment (September 10, 2021).
Second instance: Criminal Judgment of Nanchong Intermediate People's Court of Sichuan Province (2021) Chuan 13 Xingzhong No. 325 (May 9, 2022).
Second Criminal Division).