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Guiding Case No. 87 of the Supreme People's Court: People v. Guo Mingsheng, Guo Mingfeng and Sun Shubiao (Case of counterfeiting a registered trademark)
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指导案例87号：郭明升、郭明锋、孙淑标假冒注册商标案
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| Guiding Case No. 87 of the Supreme People's Court: People v. Guo Mingsheng, Guo Mingfeng and Sun Shubiao | | 指导案例87号：郭明升、郭明锋、孙淑标假冒注册商标案 |
| (Issued on March 6, 2017 as deliberated and adopted by the Judicial Committee of the Supreme People's Court) | | （最高人民法院审判委员会讨论通过 2017年3月6日发布） |
| Keywords | | 【关键词】 |
| criminal; crime of counterfeiting a registered trademark; amount of illegal business operations; online sale; brushing credibility | | 刑事/假冒注册商标罪/非法经营数额/网络销售/刷信誉 |
| Key Points of Judgment | | 【裁判要点】 |
| In the crime of counterfeiting a registered trademark, the amount of illegal business operations and the amount of illegal gains shall be identified by taking into full account of such evidence as confessions of defendants, testimony of witnesses, statements of victims, electronic data of online sale, records and bank accounts of defendants, delivery notes, computer system records of express companies, and accounts kept by defendants. Where a defendant contends that there is untrue dealing for brushing credibility in the records of online retailing, but there is no evidence to prove the contention, such contention may not be admitted. | | 假冒注册商标犯罪的非法经营数额、违法所得数额，应当综合被告人供述、证人证言、被害人陈述、网络销售电子数据、被告人银行账户往来记录、送货单、快递公司电脑系统记录、被告人等所作记账等证据认定。被告人辩解称网络销售记录存在刷信誉的不真实交易，但无证据证实的，对其辩解不予采纳。 |
| Legal Provisions | | 【相关法条】 |
| Article 213 of the Criminal Law of the People's Republic of China | | 《中华人民共和国刑法》第213条 |
| Basic Facts | | 【基本案情】 |
The public prosecution organ charged that: From the end of November 2013 to June 2014, for the purpose of seeking illegal profits, without the licensing of Samsung (China) Investment Co., Ltd. and in collusion with defendants Sun Shubiao and Guo Mingfeng, defendant Guo Mingsheng purchased counterfeit bare SΛMSUNG mobile phones and accessories by wholesale from other persons, assembled them, publicized them as “genuine ones” by using his online store “SΛMSUNG Digital Counter” on Taobao, and sold them at a price significantly lower than the market price. They sold a total of over 20,000 counterfeit SΛMSUNG mobile phones, with the sales amount of over CNY20 million and the illegal profits of over CNY2 million, and they should be subject to criminal liability for the crime of counterfeiting a registered trademark. In the joint crime, Guo Mingsheng played a leading role and was the principal offender; and Guo Mingfeng and Sun Shubiao played an assistant role and were accessory offenders and they should be given lighter punishments.
．．．．．． | | 公诉机关指控：2013年11月底至2014年6月期间，被告人郭明升为谋取非法利益，伙同被告人孙淑标、郭明锋在未经三星（中国）投资有限公司授权许可的情况下，从他人处批发假冒三星手机裸机及配件进行组装，利用其在淘宝网上开设的“三星数码专柜”网店进行“正品行货”宣传，并以明显低于市场价格公开对外销售，共计销售假冒的三星手机20000余部，销售金额2000余万元，非法获利200余万元，应当以假冒注册商标罪追究其刑事责任。被告人郭明升在共同犯罪中起主要作用，系主犯。被告人郭明锋、孙淑标在共同犯罪中起辅助作用，系从犯，应当从轻处罚。
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