销售假冒注册商标的商品罪之未遂形态争议问题探析

Study on Controversy of the Pattern of Crime of Selling Commodities Bearing Counterfeited Registered Trademark

作为数额犯的销售假冒注册商标的商品罪存在未遂形态,并且既遂与未遂可以并存。《意见》对本罪停止形态的相关规定体现了刑法的谦抑精神以及有利于被告原则的要求,但其规定也明显存在一定的弊端,需要采用合理的解释方法予以克服。学界基于货值金额与销售金额所形成的"三倍"关系提出的折算说并不妥当,将尚未销售的货值金额计入已经销售的金额以犯罪既遂论处的观点亦不可取。当按此处理会造成罪刑明显失当时,将已经销售的金额计入尚未货值金额以犯罪未遂定罪处罚是可取的。

As the crime of amount, Crime of Selling Commodities Bearing Counterfeited Registered Trademark exists attempted state, and the accomplished state and the attempted state can exist together. The relevant provisions of “opinion” fully embody the spirit of modesty of criminal law and the principle of favoring the accused, however, the “opinion” also has some shortcomings, and need to adopt a reasonable interpretation method to overcome. The conversion theory which based on the “three times” is not appropriate, the view stands for including the value of goods into the amount of sales is also not advisable. If the application in accordance with the “opinion” may cause the crime and penalty improper significantly, take the sales amount included in the values of goods, and then be regard as the attempted crime punished is desirable.