生产、销售伪劣产品罪的保护法益与适用纠偏

Protection of the crime of producing and selling counterfeit and shoddy products and correcting the application

  • 摘要: 生产、销售伪劣产品罪所保护的市场秩序法益为避免危险产品的市场流通性,所保护的消费者法益为市场中不特定消费者的知情权。只侵犯市场监管制度,或者只侵犯特定购买者权益的生产、销售伪劣产品行为均不构成本罪。本罪应为单一性罪名,单纯地生产伪劣产品不应构成本罪。销售“伪而不劣”的产品侵犯了不特定消费者的知情权的可以构成本罪。区分本罪与其他生产、销售伪劣商品犯罪不能仅依照行政法规作出形式解释,而应以行为是否侵犯了消费者的知情权以及健康权、财产权等其他附随法益作为实质区分依据。

     

    Abstract: The legal interest of the market order protected by the crime of producing and selling counterfeit and shoddy products is to prohibit the market circulation of dangerous products, and the legal interest of consumers protected is the right to know of unspecified consumers in the market. The production and sale of fake and shoddy products that only infringe on the market supervision system, or only infringe on the rights and interests of specific buyers, do not constitute this crime. This crime should be a single crime, and the crime of simply producing fake and shoddy products should not constitute this crime. Selling "fake but not inferior" products that infringe on the right to know of unspecified consumers can constitute this crime. The premise of determining "shoddy charging" is that the products being compared belong to the same category and have relatively clear quality grade standards as a basis for comparison. The distinction between this crime and other crimes of producing and selling counterfeit and shoddy goods cannot be interpreted solely in accordance with administrative regulations, but should be based on whether the act infringes on consumers' right to know, as well as other ancillary legal interests such as the right to health and property rights.

     

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