假酒犯罪刑法应对的实证研究

An Empirical Study of the Criminal Law Response to Counterfeit Alcohol Offences

我国当前对假酒犯罪主要以假冒注册商标罪、销售假冒注册商标的商品罪等罪名予以规制。调研分析发现:假酒犯罪定罪中存在定罪量刑普遍偏轻、对假酒产业链的刑法覆盖不全、销售额和共同犯罪认定中存在偏差等问题;假酒犯罪处罚中存在缓刑适用多数未按照食品犯罪适用、财产刑的惩罚不力、职业禁止几无适用等问题。对假酒犯罪刑法应对应做如下调适:应加强苏、皖、川、黔等省市对假酒犯罪的司法力度;增加以制售假酒次数定罪;将为制造假酒收购空酒瓶、包装盒等行为入刑;销售50万元以上假酒,应按生产、销售伪劣产品罪定罪处罚;假酒犯罪应按照食品犯罪处置。

China currently regulates the crime of counterfeit alcohol mainly by the crime of counterfeiting registered trademarks and the crime of selling counterfeit registered goods.The research and analysis found that:the convictions for counterfeit alcohol offences were generally lenient,the criminal law coverage of the counterfeit alcohol industry chain was incomplete,and there were discrepancies in the determination of sales and joint offences.The application of probation in the punishment of counterfeit alcohol offences is mostly not applied in accordance with food offences,the punishment of property sentences is weak,and occupational prohibitions are rarely applied.The criminal law on counterfeit alcohol crimes should be adapted as follows:the judicial efforts on counterfeit alcohol crimes in provinces and cities such as Suzhou,Anhui,Sichuan and Qian should be strengthened.Increasing the number of convictions for the manufacture and sale of counterfeit alcohol;criminalizing the acquisition of empty bottles and boxes of alcohol for the manufacture of counterfeit alcohol;the sale of counterfeit alcohol over RMB 500,000 yuan shall be criminalized and punished as a production or sale of shoddy products offence;counterfeit alcohol offences shall be dealt with as food offences.