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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:
......

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