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The People's Procuratorate of Jing'an District, Shanghai v. Huang Chunhai (Case of Prosecution for Helping Criminals to Evade Punishments and Selling Commodities Bearing Counterfeit Registered Trademarks)
上海市静安区人民检察院诉黄春海帮助犯罪分子逃避处罚、销售假冒注册商标的商品案
【法宝引证码】

The People’s Procuratorate of Jing’an District, Shanghai v. Huang Chunhai (Case of Prosecution for Helping Criminals to Evade Punishments and Selling Commodities Bearing Counterfeit Registered Trademarks)
(Case of Prosecution for Helping Criminals to Evade Punishments and Selling Commodities Bearing Counterfeit Registered Trademarks)
上海市静安区人民检察院诉黄春海帮助犯罪分子逃避处罚、销售假冒注册商标的商品案

The People's Procuratorate of Jing'an District, Shanghai v. Huang Chunhai
(Case of Prosecution for Helping Criminals to Evade Punishments and Selling Commodities Bearing Counterfeit Registered Trademarks)

 

上海市静安区人民检察院诉黄春海帮助犯罪分子逃避处罚、销售假冒注册商标的商品案

[Judgment Abstract] 【裁判摘要】
1. Pursuant to the Interpretation of the Standing Committee of the National People's Congress on the Issue of Application of Subjects for the Crime of Dereliction of Duty as Prescribed in Chapter IX of the Criminal Law of the People's Republic of China, a person who performs public services in an organization exercising the administrative power of the state according to laws and regulations, or a person who performs public services in an organization authorized by a state organ to exercise the power on its behalf, or a person who is not a state functionary but performs public services in a state organ, shall be subject to criminal liability according to the provisions on the crime of dereliction of duty as prescribed in the Criminal Law, if he or she is derelict in duties and if his or her conduct constitutes a crime. The Tobacco Monopoly Bureau is an organization that accepts the authorization of the relevant administrative organs of the state and exercises administrative law enforcement powers to inspect the tobacco monopoly market and investigate and punish conduct in violation of tobacco monopoly provisions according to law. Therefore, a person who performs public services in an organization authorized by the state organ to exercise the power on its behalf shall be subject to criminal liability according to the provisions on the crime of dereliction of duty as prescribed in the Criminal Law, if he or she is derelict in duties and if his or her conduct constitutes a crime. 一、根据全国人大常委会《关于<中华人民共和国刑法>第九章渎职罪主体适用问题的解释》的规定,在依照法律、法规规定行使国家行政管理职权的组织中从事公务的人员,或者在受国家机关委托代表国家机关行使职权的组织中从事公务的人员,或者虽未列入国家机关人员编制但在国家机关中从事公务的人员,在代表国家机关行使职权时,有渎职行为,构成犯罪的,依照刑法关于渎职罪的规定追究刑事责任。烟草专卖局系接受有关国家行政机关的委托,代表有关国家机关依法行使烟草专卖市场稽查和查处违反烟草专卖行为等行政执法权的组织。因此,烟草专卖局的工作人员在代表国家机关行使职权时,有渎职行为,构成犯罪的,应当依照刑法关于渎职罪的规定追究刑事责任。
2. In accordance with Article 417 of the Criminal Law, the crime of aiding criminals to evade punishment refers to the conduct of a state functionary, with the responsibility of investigating and prohibiting criminal activities, to leak information or tip off criminals and facilitate their evasion of punishment. The “duty of investigating and prohibiting criminal activities” not only refers to the statutory functions of judicial organs in criminal investigation, prosecution, trial, and enforcement of criminal punishments, but also includes the function of investigating and prohibiting criminal activities, a power that is vested in administrative organs by law. The Tobacco Monopoly Bureau is an organization that accepts the authorization of the relevant administrative organs of the state and exercises the administrative law enforcement powers to inspect the tobacco monopoly market and investigate and punish conduct in violation of tobacco monopoly provisions according to law. In accordance with Article 29 of the Provisions of the State Tobacco Monopoly Administration on the Administrative Penalty Procedures for Tobacco Monopoly, if it is found that a violation of tobacco monopoly provisions constitutes any crime, the relevant functionaries are to transfer the case to the judicial organ according to law. Accordingly, if the functionaries of the tobacco monopoly administration find any criminal activity, they must collect and organize the relevant evidentiary materials and transfer the case to the judicial organ. In other words, it is the duty of the tobacco monopoly administration and its functionaries to investigate and prohibit criminal activities. The personnel of the Inspection Team of the Tobacco Monopoly Bureau, when performing the duty of inspecting and prohibiting the sale of counterfeit tobacco, leaked information, several times and in advance, to criminals regarding the arrangements of the Inspection Team on spot inspections for the sale of counterfeit tobacco, which enabled the criminals to successfully evade criminal punishment. Such conduct is the crime of aiding criminals to evade punishment. 二、根据刑法四百一十七条的规定,帮助犯罪分子逃避处罚罪是指有查禁犯罪活动职责的国家机关工作人员,向犯罪分子通风报信、提供便利,帮助犯罪分子逃避处罚的行为。该条规定的“查禁犯罪活动职责”,不仅是指司法机关依法负有的刑事侦查、检察、审判、刑罚执行等职责,也包括法律赋予相关行政机关的查禁犯罪活动的职责。烟草专卖局接受有关国家行政机关的委托,代表有关国家行政机关依法行使烟草专卖市场稽查和查处违反烟草专卖行为等行政执法权。根据国家烟草专卖局《烟草专卖行政处罚程序规定》第二十九条的规定,发现违反烟草专卖规定的违法行为构成犯罪时,相关工作人员应当依法将案件移送司法机关处理。据此,烟草专卖局及其工作人员具有查禁违反烟草专卖的犯罪活动的职责。烟草专卖局稽查队的工作人员在履职过程中,采用通风报信的手法,多次将突击检查假烟销售行动的部署安排透露给销售假烟的犯罪分子,致使犯罪分子逃避刑事处罚的,构成帮助犯罪分子逃避处罚罪。

BASIC FACTS

 
Public prosecutor: The People's Procuratorate of Jing'an District, Shanghai 公诉机关:上海市静安区人民检察院。
Defendant: Huang Chunhai, male, 26, former inspector of the Inspection Detachment of Shanghai Tobacco Monopoly Bureau, Jing'an Branch, and residing at Baotou Road, Shanghai. Being a suspect involved in the crime of selling commodities bearing counterfeit registered trademarks, he got bail pending trial on November 9, 2007 and was arrested on March 24, 2008. 被告人:黄春海,男,26岁,原系上海市烟草专卖局静安分局稽查支队稽查员,住上海市包头路。因涉嫌销售假冒注册商标的商品罪,于2007年11月9日被取保候审,2008年3月24日被逮捕。
PROCEDURAL POSTURE 
The People's Procuratorate of Jing'an District, Shanghai lodged a public prosecution in the People's Court of Jing'an District against Huang Chunhai for the crime of helping criminals to evade punishments and the crime of selling commodities bearing counterfeit registered trademarks. 上海市静安区人民检察院以被告人黄春海犯帮助犯罪分子逃避处罚罪、销售假冒注册商标的商品罪,向上海市静安区人民法院提起公诉。
It is charged in the indictment that during his working as an inspector of the Inspection Detachment of Shanghai Tobacco Monopoly Bureau, Jing'an Branch (hereinafter referred to Jing'an Detachment), namely, from September, 2006 to October, 2007, Huang Chunhai divulged in advance, for several times, to Cai Qingde, business operator of Qingqing Grocery Store (dealt with in another case, judgment already made) at No. 479 of Jiaozhou Road, Shanghai, which lies within its jurisdiction, the arrangements of the Inspection Detachment for surprise inspections of the sale of counterfeit tobaccos when performing the duty of inspecting and prohibiting the sale of counterfeit tobaccos, which enabled Cai Qingde to successfully evade punishment for his crime of sale of counterfeit tobacco products. Moreover, from November, 2004, Huang Chunhai, in collusion with Cai Qingde, aggregately sold 200 odd cartons of counterfeit Zhonghua Cigarettes to Mao Yingmei, Zhang Yuan, et al, with the sales amount of 86, 000 yuan. In conclusion, Huang Chunhai's conducts have violated the provisions of Articles 417 and 214 of the Criminal Law of the People's Republic of China (hereinafter referred to as the Criminal Law) and constituted the crime of helping criminals to evade punishments and the crime of selling commodities bearing counterfeit registered trademarks, thus the People's Procuratorate of Jing'an District pleads the court to subject him to criminal liabilities. 起诉书指控:被告人黄春海在担任上海市烟草专卖局静安分局稽查支队(以下简称稽查支队)稽查员期间,于2006年9月至2007年10月间,在对假烟销售活动进行查禁的履职过程中,采用通风报信的手法,多次将稽查支队突击检查假烟销售行动的部署安排,事先泄漏给其辖区内的上海市胶州路479号青青杂货店经营者蔡庆德(另案处理,已判决),致使蔡庆德销售假冒烟草制品的犯罪行为得以逃避处罚。此外,黄春海于2004年11月起,伙同蔡庆德将假冒中华卷烟先后销售给黄春海的亲友毛莹梅、张渊等人共计200余条,销售金额达人民币8.6万余元。综上,黄春海的行为已分别触犯《中华人民共和国刑法》(以下简称刑法)第四百一十七条、第二百一十四条之规定,构成帮助犯罪分子逃避处罚罪、销售假冒注册商标的商品罪,提请依法追究其刑事责任。
Huang Chunhai raised no objection to the charges in the indictment. His defender alleged that Huang Chunhai should be punished for the crime of selling counterfeit registered trademarks because his conduct does not constitute the crime of helping criminals to evade punishments. The main grounds are as follows: (1) Huang Chunhai, as an inspector of the Inspection Detachment, only had the power of administrative law enforcement, and did not have the function of inspecting and prohibiting criminal activities; and (2) Huang Chunhai sold cigarettes bearing counterfeit registered trademarks together with Cai Qingde, so he is an accomplice in the crime of selling commodities bearing counterfeit registered trademarks. That Huang Chunhai divulged the secret information to Cai Qingde is to make himself evade the punishments rather than to help Cai Qingde to evade the punishments. In addition, Huang Chunhai may be given a lesser punishment according to law because of voluntary surrender. 被告人黄春海对起诉书指控的事实无异议,其辩护人认为,黄春海的行为不构成帮助犯罪分子逃避处罚罪,应以销售假冒注册商标的商品罪一罪论处。主要理由是:一、黄春海作为稽查支队的稽查员,仅具有行政执法权,不具有查禁犯罪活动的职责;二、黄春海与蔡庆德共同销售假冒注册商标的卷烟,是销售假冒注册商标的商品罪的共犯。黄春海向蔡庆德通风报信的目的,并非是为了帮助蔡庆德逃避处罚,而是为了使自己得以逃脱处罚。此外,黄春海具有自首情节,依法可从轻处罚。
During the first instance, the People's Court of Jing'an District found that: 上海市静安区人民法院一审查明:
During the period of working as an inspector of the Inspection Detachment, namely, from September, 2006 to October, 2007, Huang Chunhai divulged in advance, for several times, to Cai Qingde, business operator of Qingqing Grocery Store at No. 479 Jiaozhou Road, Shanghai, which lies within its jurisdiction, the arrangements of the Inspection Detachment for surprise inspections of the sale of counterfeit tobaccos when he performed the duty of inspecting and prohibiting the sale of counterfeit tobaccos. During the Spring Festival 2007, before Huang Chunhai left Shanghai for personal business, he instigated Teng Haijun, his colleague, (dealt with in another case) to divulge to Cai Qingde the arrangement of the Inspection Detachment for surprise inspections of the sale of counterfeit tobaccos during the Spring Festival. Because of Huang Chunhai's advance divulgement of information, Cai Qingde evaded, for several times, the inspections and got away from punishments for the crime of selling cigarettes bearing counterfeit registered trademarks. 被告人黄春海在担任稽查支队稽查员期间,于2006年9月至2007年10月,在查禁销售假冒伪劣卷烟违法犯罪的活动中,多次将稽查支队突击检查的部署安排事先泄漏给辖区内位于上海市胶州路479号的青青杂货店的经营者蔡庆德。2007年春节期间,黄春海因私离沪前,还指使其同事滕海俊(另案处理)将稽查支队春节期间突击检查的部署安排事先泄漏给蔡庆德。由于黄春海的事先通风报信,致使蔡庆德销售假冒注册商标卷烟的犯罪行为多次得以逃避检查和处罚。
It is also found that, from November, 2004, Huang Chunhai introduced others, for several times, to buy Zhonghua Cigarettes from Cai Qingde, with whom he shared profits. Huang Chunhai, by the aforesaid means and in collusion with Cai Qingde, aggregately sold 200 odd cartons of counterfeit Zhonghua Cigarettes to Mao Yingmei, Zhang Yuan, et al, with the sales amount of 86, 000 yuan 另查明,被告人黄春海于2004年11月起,多次介绍他人至蔡庆德处购买假冒注册商标的中华卷烟,而后与蔡庆德共同分利。黄春海以上述方式伙同蔡庆德将假冒注册商标的中华卷烟销售给毛莹梅、张渊等人共计200余条,销售金额达人民币 8.6万余元。
Huang Chunhai confessed the aforesaid facts of crime on his own initiative when the entity investigated him on November 7, 2007. 2007年11月7日,被告人黄春海在单位对其进行调查时,主动交代了上述犯罪事实。
The public prosecutor presented to the tribunal the following proofs, which were cross-examined during the court trial, to support the aforesaid facts: 上述事实,有公诉机关向法庭出示并经庭审质证的下列证据予以证实:
1. The public institution legal person certificate of Shanghai Tobacco Monopoly Bureau, Jing'an Branch, proving that Shanghai Tobacco Monopoly Bureau, Jing'an Branch is a public institution responsible for inspecting the tobacco monopoly market within its jurisdiction and for investigating and punishing the conducts in violation of the tobacco monopoly provisions as empowered by the state organ. 1.上海市烟草专卖局静安分局的事业单位法人证书,证明上海市烟草专卖局静安分局虽系事业单位,但受有关国家机关委托,负责辖区内烟草专卖市场的稽查并对违反烟草专卖的行为进行查处。
2. The title certificate, employment document and law enforcement certificate of Huang Chunhai issued by Shanghai Tobacco Monopoly Bureau, Jing'an Branch proving that Huang Chunhai was an inspector of the Inspection Detachment prior to this case. 2.上海市烟草专卖局静安分局出具的被告人黄春海的职务证明、岗位聘任书、执法证,证明黄春海案发前系稽查支队的稽查员。
3. The forms of records of Inspection Detachment's inspections of the market, forms of examination and approval for overtime work, and records of the mobile phone of Huang Chunhai furnished by Shanghai Tobacco Monopoly Bureau, Jing'an Branch proving that the Inspection Detachment conducted several surprise inspections between September 2006 and October 2007 and that there have been conversations between the mobile phone and Qingqing Grocery Store. 3.上海市烟草专卖局静安分局出具的稽查支队市场检查情况记录表、加班审批表、被告人黄春海移动电话的通信记录,证明稽查支队于2006年9月至2007年10月间多次进行突击检查,黄春海的移动电话多次在突击检查前与青青杂货店存在通话记录的事实。
4. Testimonies of Teng Haijun, proving that during the Spring Festival 2007 and before leaving Shanghai, Huang Chunhai asked him to inform Cai Qingde of the surprise inspection of the Inspection Detachment; and that he had ever informed in advance Cai Qingde of the surprise inspections of the Inspection Detachment for several times. 4.滕海俊的证言,证明2007年春节期间,被告人黄春海在离沪前,要其将稽查支队突击检查的消息事先告知蔡庆德;其曾几次将稽查支队突击检查的消息事先告知蔡庆德。
5. Testimonies of Yang Fengying, Cai Qingde's wife, proving that between September 2006 and October 2007, Huang Chunhai and Teng Haijun made phones calls to Cai Qingde and informed him in advance of the surprise inspection of the Inspection Detachment for several times. 5.蔡庆德之妻、证人杨凤英的证言,证明被告人黄春海和滕海俊于2006年9月至2007年10月间,多次将稽查支队突击检查的消息事先电话告知蔡庆德,蔡庆德据此在突击检查时停止销售假冒注册商标的烟草制品。
6. Confessions of Cai Qingde, which not only supported the Yang Fengying's testimonies, but also proved that from November 2004, he and Huang Chunhai aggregately sold 200 odd cartons of counterfeit Zhonghua Cigarettes to Mao Yingmei, Zhang Yuan, et al, (Huang Chunhai's relatives) with the sales amount of 86, 000 yuan. 6.蔡庆德的供述,除印证其妻杨凤英的证言外,还证明自2004年11月起,他与被告人黄春海将200余条假冒注册商标的中华卷烟销售给黄春海的亲戚毛莹梅、张渊等人,销售金额达人民币8.6万余元,后他与黄春海共同分利。
7. Testimonies of Mao Yingmei, Zhang Yuan, Guo Dahai, Liu Yuyan, Shi Zhenbin, Shen Enfeng, et al (witnesses), proving that Huang Chunhai had ever sold to them 200 odd cartons of counterfeit Zhonghua Cigarettes. 7.证人毛莹梅、张渊、郭大海、刘玉艳、施振兵、沈恩奉等人的证言,证明被告人黄春海曾将200余条假冒注册商标的中华卷烟销售给他们。
8. Testimonies of Chen Honglin, head of the Inspection Detachment and a witness, proving that when the entity investigated Huang Chunhai on November 7, 2007, Huang Chunhai confessed on his own initiative the facts that he had divulged to Cai Qingde the arrangements for surprise inspections of the Inspection Detachment and that he had sold commodities bearing counterfeit registered trademarks jointly with Cai Qingde, and that he provided to the Detachment confessions written by himself on the same day, which can be testified by the testimonies of the witnesses. 8.稽查支队队长、证人陈洪林的证言,证明被告人黄春海于2007年11月7日在单位对其进行调查时,主动交代了向蔡庆德通报稽查支队突击检查的部署及其与蔡庆德共同销售假冒注册商标的商品的事实,并于同日向单位出具亲笔供述,其供述内容与证人证言相互佐证。
The focus of dispute in this case is whether Huang Chunhai's divulging to Cai Qingde the arrangements for the surprise inspections of the Inspection Detachment constitutes the crime of helping criminals to evade the punishments and whether he should be subject to concurrent punishments for plural crimes. 本案的争议焦点是:被告人黄春海向蔡庆德通报稽查支队突击检查部署的行为,是否构成帮助犯罪分子逃避处罚罪,应否数罪并罚。
The People's Court of Jing'an District held in the first instance that: 上海市静安区人民法院一审认为:
During the period of performing the duty of inspecting and prohibiting the sale of counterfeit tobaccos, Huang Chunhai, as a member of the Inspection Detachment, divulged in person or instigated others to divulge in advance the arrangements for the surprise inspections for several times, helped Cai to evade punishments and sold a huge amount of cigarettes bearing counterfeit registered trademarks. His act has constituted the crime of helping criminals to evade punishments and the crime of selling counterfeit registered trademarks, so he should be punished concurrently for plural crimes. The criminal facts charged by the public prosecutor are clear, the proofs are exact and sufficient and the determination of nature of the case is correct. 被告人黄春海作为稽查支队的稽查员,在查禁销售假冒伪劣卷烟违法犯罪的职务活动中,多次亲自或指使他人向犯罪分子事先通报突击检查部署情况,帮助犯罪分子逃避处罚,还伙同他人销售假冒注册商标的卷烟制品,数额较大,其行为已构成帮助犯罪分子逃避处罚罪、销售假冒注册商标的商品罪,应按照数罪并罚的原则依法予以惩处。检察机关指控的犯罪事实清楚,证据确实、充分,定性正确。
1. Huang Chunhai meets the identity requirement for the crime of helping criminals to evade punishments.First, Jing'an Branch of Shanghai Tobacco Monopoly Bureau is an organization lawfully established to administer the tobacco monopoly market within its jurisdiction. Although it is a public institution, it has, upon authorization of the administrative organ of the state, the administrative law enforcement powers to inspect the tobacco monopoly market within its jurisdiction and investigate and punish conducts in violation of tobacco monopoly provisions. In accordance with Article 18来自北大法宝, paragraph 1, Article 19, paragraph 1, subparagraph 1, of the Law of People's Republic of China on Administrative Punishment, an administrative organ may, under the provisions of laws, regulations or rules and within its statutory functions, authorize a lawfully established public affairs management organization to exercise the power of administrative punishment. It may, according to the aforesaid provisions and public institution legal person certificate of Shanghai Tobacco Monopoly Bureau, Jing'an Branch, be confirmed that Jing'an Branch is an organization that accepts the authorization of the relevant administrative organ of the state and exercises the administrative law enforcement powers to inspect the tobacco monopoly market and investigate and punish conducts in violation of tobacco monopoly provisions according to law. Pursuant to the Interpretation of the Standing Committee of the National People's Congress on the Issue of Application of Subjects for the Crime of Dereliction of Duty as Prescribed in Chapter IX of the Criminal Law of the People's Republic of China, a person who performs public services in an organization exercising the administrative power of the state according to laws and regulations or a person who performs public services in an organization authorized by the state organ to exercise the power on its behalf or a person who is not a state functionary but performs public services in a state organ shall be subject to criminal liabilities according to the provisions on the crime of dereliction of duty as prescribed in the Criminal Law, if he derelicts his duties and if his conduct constitutes a crime. In this case, Huang Chunhai was an inspector of the Inspection Detachment, which is subordinate to Shanghai Tobacco Monopoly Bureau, Jing'an Branch, and is responsible for inspecting the tobacco monopoly market within its jurisdiction and investigating and punishing the conducts in violation of the tobacco monopoly provisions, so it may be confirmed that Huang Chunhai was a person who performed public services in an organization authorized by the state organ to exercise the power on its behalf, and that he should be regarded as a functionary of the state organ when exercising the power on behalf of the state organ. 一、被告人黄春海符合帮助犯罪分子逃避处罚罪的主体身份。首先,上海市烟草专卖局静安分局系依法成立的管理辖区内烟草专卖市场的组织,虽系事业单位,但受有关国家行政机关的委托,依法行使对辖区内烟草专卖市场进行稽查并对违反烟草专卖的行为进行查处等行政执法权。根据《中华人民共和国行政处罚法》第十八条第一款、第十九条第一款第一项的规定,行政机关依照法律、法规或者规章的规定,可以在其法定权限内,委托依法成立的管理公共事务的组织实施行政处罚。根据上述规定并结合上海市烟草专卖局静安分局事业单位法人证书,可以确认,上海市烟草专卖局静安分局系接受有关国家行政机关的委托,代表有关国家机关依法行使烟草专卖市场稽查和查处违反烟草专卖行为等行政执法权的组织。根据全国人大常委会《关于<中华人民共和国刑法>第九章渎职罪主体适用问题的解释》的规定,在依照法律、法规规定行使国家行政管理职权的组织中从事公务的人员,或者在受国家机关委托代表国家机关行使职权的组织中从事公务的人员,或者虽未列入国家机关人员编制但在国家机关中从事公务的人员,在代表国家机关行使职权时,有渎职行为,构成犯罪的,依照刑法关于渎职罪的规定追究刑事责任。本案中,被告人黄春海系稽查支队的稽查员,其所在的稽查支队隶属于上海市烟草专卖局静安分局,具体负责辖区内烟草专卖市场稽查和查处违反烟草专卖行为。故可以认定,黄春海属于在受国家机关委托代表国家机关行使职权的组织中从事公务的人员,其在代表国家机关行使职权时,应以“国家机关工作人员”论。
Second, in accordance with Article 417 of the Criminal Law, the crime of helping criminals to evade punishments refers to such conducts of a state functionary with the responsibility of investigating and banning criminal activities as sending secret information or tip-off to criminals, and facilitating their evasion of punishments. The “duty of investigating and banning criminal activities” not only refers to the statutory functions of judicial organs in criminal investigation, prosecution, trial, and enforcement of criminal punishments, but also includes the function of investigating and banning criminal activities, which is vested in administrative organs by law. Article 402
哎哟不错哦
of the Criminal Law provides that “Where an administrative law enforcer who, due to favoritism and malpractice, fails to transfer to the judicial organ a case which shall be transferred to the judicial organ for investigating criminal liabilities, he shall be sentenced to fixed-term imprisonment of not more than 3 years or criminal detention; if the circumstance is serious, he shall be sentenced to fixed term imprisonment of 3 up to 7 years.” The Provisions on the Transfer of Suspicious Criminal Cases by Administrative Organs for Law Enforcement also expressly provides that “Where an administrative law enforcer who, due to favoritism and malpractice, fails to transfer to the judicial organ a case which shall be transferred to the judicial organ for investigating the criminal liabilities, he shall be subject to criminal liabilities.” Accordingly, if an administrative organ finds any suspicious crime during the process of law enforcement, it should transfer the case to the judicial organ for criminal liabilities, which is the administrative organ's statutory function of investigating and banning criminal activities. The Provisions of the Supreme People's Procuratorate on the Standards Regarding the Acceptance of Criminal Cases of Dereliction of Duty and Tort also provides that the subject of the crime of helping criminals to evade punishments are “functionaries of justice, public security, state security, customs, tax and other state organs with the function of investigating and banning criminal activities.” In this case, Jing'an Branch exercises, upon authorization of the relevant administrative organ of the state, the administrative law enforcement powers such as inspecting the tobacco monopoly market and investigating and punishing the violations of tobacco monopoly provisions on behalf of the relevant state organ. The Inspection Detachment of which Huang Chunhai is a member is subordinate to Shanghai Tobacco Monopoly Bureau, Jing'an Branch, which is responsible for inspecting the tobacco monopoly market and investigating and punishing violations of tobacco monopoly provisions. In accordance with Article 29 of the Provisions of the State Tobacco Monopoly Administration on the Administrative Punishment Procedures Regarding Tobacco Monopoly, if it is found that a violation of tobacco monopoly provisions constitutes any crime, the relevant functionaries should transfer the case to the judicial organ according to law. Accordingly, if the functionaries of the tobacco monopoly administration find any criminal activity, they must collect and sort out the relevant evidential materials and transfer the case to the judicial organ. In other words, it is the duty of the tobacco monopoly administration and its functionaries to investigate and ban criminal activities. As an inspector of the Inspection Detachment, he bore this duty as well.
 其次,根据刑法

北大法宝,版权所有

四百一十七条的规定,帮助犯罪分子逃避处罚罪是指有查禁犯罪活动职责的国家机关工作人员,向犯罪分子通风报信、提供便利,帮助犯罪分子逃避处罚的行为。该条规定的“查禁犯罪活动职责”,不仅是指司法机关依法负有的刑事侦查、检察、审判、刑罚执行等职责,也包括法律赋予相关行政机关的查禁犯罪活动的职责。刑法四百零二条规定:“行政执法人员徇私舞弊,对依法应当移交司法机关追究刑事责任的不移交,情节严重的,处三年以下有期徒刑或者拘役;造成严重后果的,处三年以上七年以下有期徒刑。”国务院颁布的《行政执法机关移送涉嫌犯罪案件的规定》中也明确规定:“行政执法人员徇私舞弊,对应当移交司法机关追究刑事责任的不移交,情节严重,应追究其刑事责任。”据此,行政机关在行政执法中发现涉嫌犯罪的,应当依法移交司法机关追究刑事责任,这是行政机关承担的查禁犯罪活动的法定职责。最高人民检察院《关于渎职侵权犯罪案件立案标准的规定》亦明确将帮助犯罪分子逃避处罚罪的主体规定为“有查禁犯罪活动职责的司法及公安、国家安全、海关、税务等国家机关工作人员”。本案中,上海市烟草专卖局静安分局接受有关国家行政机关的委托,代表有关国家机关依法行使烟草专卖市场稽查和查处违反烟草专卖行为等行政执法权。被告人黄春海所在的稽查支队隶属于上海市烟草专卖局静安分局,具体负责辖区内烟草专卖市场稽查和查处违反烟草专卖行为。根据国家烟草专卖局《烟草专卖行政处罚程序规定》第二十九条的规定,发现违反烟草专卖规定的违法行为构成犯罪时,相关工作人员应当依法将案件移送司法机关处理。据此,烟草专卖局的工作人员,在发现犯罪活动时,必须收集、整理有关证据材料并将案件移交司法机关处理,此即烟草专卖局及其工作人员所负有的查禁犯罪活动的职责。黄春海作为稽查支队的稽查员,负有此项职责。
For the reasons given above, Huang Chunhai's defender's argument that Huang Chunhai was not a suitable subject for the crime of helping criminals to evade punishments does not stand and should not be adopted. 综上,被告人黄春海的辩护人关于黄春海不符合帮助犯罪分子逃避处罚罪主体身份的辩护理由不能成立,不予采纳。
2. Huang Chunhai committed the crime of helping criminals to evade punishments 二、被告人黄春海实施了帮助犯罪分子逃避处罚的犯罪行为。
In light of the facts in this case, Huang Chunhai divulged in advance, for several times, to Cai Qingde the arrangements of the Inspection Detachment for surprise inspections of the sale of counterfeit tobaccos when performing the duty of inspecting and prohibiting the sale of counterfeit tobaccos, which enabled Cai to have successfully evaded the punishment for his sale of counterfeit cigarettes bearing counterfeit registered trademarks. Such conduct of Huang's is a crime helping criminals to evade punishments. 根据本案事实,被告人黄春海在担任稽查支队稽查员期间,多次将稽查支队突击检查的部署安排事先泄漏给蔡庆德,致使蔡庆德销售假冒注册商标卷烟的犯罪行为多次得以逃避检查和处罚。黄春海的上述行为,属于帮助犯罪分子逃避处罚的犯罪行为。
3. Huang Chunhai should be subject to concurrent punishments for plural crimes for his conducts which constitute the crime of helping criminals to evade punishments and the crime of selling commodities bearing counterfeit registered trademarks. 三、对被告人黄春海的行为,应当以帮助犯罪分子逃避处罚罪、销售假冒注册商标的商品罪数罪并罚。
Huang introduced others, for several times, to buy Zhonghua Cigarettes from Cai Qingde totaling 200 odd cartons of counterfeit Zhonghua Cigarettes with a sales amount of 86, 000 yuan, and then he shared profits with Cai. Such conduct of Huang is a joint criminal conduct of selling commodities bearing counterfeit registered trademarks. 被告人黄春海多次介绍他人至蔡庆德处购买假冒注册商标的中华卷烟共计200余条,销售金额达人民币8.6万余元,而后与蔡庆德共同分利。黄春海的上述行为,属于销售假冒注册商标的商品的共同犯罪行为。
Although Huang, together with Cai, sold Zhonghua Cigarettes bearing counterfeit registered trademarks, the fact that his conduct of divulging the secret information to Cai Qingde constitutes the crime of helping criminals to evade punishment is not affected. It is sure that Huang divulged the secret information to Cai for his subjective purpose of preventing the exposure of his crimes, but his purpose of helping Cai Qingde to evade criminal punishments can not be denied under this pretext. Huang's defender's argument that Huang divulged the secret information to Cai for the purpose of preventing himself from punishments rather than helping Cai to evade punishments and should be punished on the basis of the crime of selling commodities bearing counterfeit registered trademarks only is unreasonable and should be denied. 被告人黄春海虽与蔡庆德共同销售假冒注册商标的中华卷烟,但这并不影响其向蔡庆德通风报信的行为构成帮助犯罪分子逃避处罚罪。黄春海向蔡庆德通风报信,固然有防止自己罪行败露的主观目的,但不能因此否定其具有帮助蔡庆德逃避刑事处罚的目的。黄春海的辩护人关于“黄春海向蔡庆德通风报信的目的是为了使自己得以逃脱处罚,应以销售假冒注册商标的商品罪一罪论处”的辩护理由不能成立,不予采纳。
To sum up, Huang Chunhai, as a member of the Inspection Detachment, had the duty of inspecting and prohibiting the crime of selling cigarette products bearing registered trademarks, but he acted as an accomplice in the crime of selling commodities bearing counterfeit registered trademarks by colluding with him in the sale of commodities bearing counterfeit registered trademarks, and divulged the secret information to him so as to help him to evade punishments. His conducts have constituted the crime of selling commodities bearing counterfeit registered trademarks and the crime of helping others to evade punishments, so he should be subject to concurrent punishments for plural crimes according to law. Huang Chunhai confessed all the criminal facts on his own initiative when the entity where he worked investigated him. His conduct may be regarded as voluntary surrender, so he may be given a lesser punishment according to law. The defender's allegation that Huang may be given a lesser punishment according to law due to his voluntary surrender shall be adopted. Huang and Cai played equal roles in the joint crime without the difference between principal and accessory and both shall be punished according to law. Therefore, in accordance with Article 417, Article 214, Article 25, paragraph 1, Article 26, paragraphs 1 and 4, Article 67, paragraph 1, Article 69 and Article 64 of the Criminal Law and the Interpretation of the Standing Committee of the National People's Congress on the Issue of Application of Subjects for the Crime of Dereliction of Duty as Prescribed in Chapter IX of the Criminal Law of the People's Republic of China, the People's Court of Jing'an District ruled as follows on June 6, 2008: 综上,被告人黄春海身为稽查支队的稽查员,负有查禁销售假冒注册商标卷烟制品犯罪的职责,却与销售假冒注册商标的商品的犯罪分子相互勾结,共同实施销售假冒注册商标的商品的犯罪行为,并向犯罪分子通风报信,帮助犯罪分子逃避处罚,其行为分别构成销售假冒注册商标的商品罪、帮助犯罪分子逃避处罚罪,应依法实行数罪并罚。黄春海在本单位对其进行调查时,主动交代了全部犯罪事实,可以自首论处,依法可从轻处罚。辩护人关于黄春海具有自首情节,依法可从轻处罚的辩护意见,应予采纳。黄春海与蔡庆德在共同犯罪中作用基本相当,无主、从犯之分,均应依法惩处。据此,上海市静安区人民法院依照刑法第第四百一十七条,第二百一十四条,第二十五条第一款,第二十六条第一、四款,第六十七条第一款,第六十九条和第六十四条,以及全国人大常委会《关于<中华人民共和国刑法>第九条渎职罪主体适用问题的解释》之规定,于2008年6月6日判决如下:
1. Huang Chunhai shall be sentenced to fixed-term imprisonment for one year and six months for the crime of helping others to evade punishments, be sentenced to fixed-term imprisonment for one year for the crime of selling commodities bearing counterfeit registered trademarks and be concurrently fined 2, 000 yuan. This court decides to execute the fixed-term imprisonment for two years and concurrently fine him 2, 000 yuan. 一、被告人黄春海犯帮助犯罪分子逃避处罚罪,判处有期徒刑一年六个月;犯销售假冒注册商标的商品罪,判处有期徒刑一年,并处罚金人民币2000元;决定执行有期徒刑二年,并处罚金人民币2000元。
2. Huang Chunhai shall be demanded to turn over his illegal proceeds to the state treasury. 二、追缴被告人黄春海违法所得,上缴国库。
Huang refused to accept the judgment of first instance and alleged in the appeal to Shanghai Intermediate People's Court that he did not have the duty of investigating and banning criminal activities. He, jointly with Cai, sold cigarettes bearing counterfeit registered trademarks, and divulged the secret information to Cai for the purpose of preventing himself from punishments, so he was only an accomplice in the crime of selling commodities of registered trademarks and his conduct does not constitute the crime of helping others to evade punishments. The case was improperly determined in the judgment of first instance, the sentence is too heavy, so he pleads for changing the judgment according to law. 黄春海不服一审判决,向上海市第二中级人民法院提出上诉称:上诉人黄春海不具有查禁犯罪活动的职责。黄春海与蔡庆德共同销售假冒注册商标的卷烟,向蔡庆德通风报信的目的也是为了使自己得以逃脱处罚,故黄春海仅是销售假冒注册商标的商品罪的共犯,不构成帮助犯罪分子逃避处罚罪。一审判决定性错误,量刑过重,请求依法改判。
Upon second instance, Shanghai No. 2 Intermediate People's Court affirmed the findings of the court of first instance. 上海市第二中级人民法院经二审,确认了一审法院查明的事实。
DISPUTED ISSUES 
The disputes in the second instance still focus on whether Huang's divulging the Inspection Detachment's arrangements for surprise inspections has constituted the crime of helping others to evade punishments and whether he should be subject to concurrent punishments for plural crimes. 二审争议的焦点仍然是:被告人黄春海向蔡庆德通报稽查支队突击检查部署的行为,是否构成帮助犯罪分子逃避处罚罪,应否数罪并罚。
JUDGMENT 
 上海市第二中级人民法院二审认为:上诉人黄春海作为稽查支队稽查员,依照《中华人民共和国烟草专卖法》、《中华人民共和国行政处罚法》及其所在部门的具体职能规定,负有查处倒卖烟草专卖品,生产、销售假冒注册商标的烟草制品等违法行为的职责,并对相关违法行为构成犯罪的,负有将案件移送司法机关依法追究刑事责任的职责。因此,黄春海符合帮助犯罪分子逃避处罚罪的主体要求,其关于不具有查禁犯罪活动职责的上诉理由不能成立。黄春海向蔡庆德通风报信,帮助蔡庆德逃避刑事处罚,其行为构成帮助犯罪分子逃避处罚罪。
 上诉人黄春海介绍他人至蔡庆德处购买假冒注册商标的卷烟并与蔡庆德共同分利,数额较大,其行为构成销售假冒注册商标的商品罪。
 综上,上诉人黄春海具体实施了帮助犯罪分子逃避处罚罪、销售假冒注册商标的商品罪两个犯罪行为,依法应予以数罪并罚。一审法院认定事实清楚,证据确实、充分,定罪量刑适当,审判程序合法。据此,上海市第二中级人民法院根据《中华人民共和国刑事诉讼法》第一百八十九条第 (一)项之规定,于2008年9月17日裁定如下:
 
The appeal shall be dismissed and the original judgment shall be affirmed. 驳回上诉,维持原判。
This ruling shall be final.

 本裁定为终审裁定。

     
     
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