Recently, Tang Jianbin and Zhang Sijia represented Tan Mou, Jane Moumou medical practitioners involved in the sale of counterfeit medicines, in the face of the risk of more than ten years of imprisonment, three years of imprisonment, respectively, the risk of re-sentencing, through the characterization of counterfeit medicines, the difference between the sale and the provision of the “sale of counterfeit medicines” and the “obstruction of the drug administration”, the difference between quantity calculation, surrender circumstances identified, the defendants pleaded guilty and four years of probation, and the lawyers independent acquittal and other powerful defense strategies. The difference between “selling and supplying”, “selling counterfeit drugs” and “obstructing the administration of drugs”, the calculation of quantity, the identification of self-reporting, the defendant's plea of guilty and the lawyer's independent innocence defense and other powerful defense strategies, and ultimately succeeded in obtaining a three-year suspended four-year prison sentence for Tan Mou, and a one-year and three-month suspended one-year and six-month sentence for Jian Moumou, both of them received probation, and both of them did not appeal, and realized a better defense results.

Case overview

During the period from February 2017 to September 2023, two defendants, both of whom are medical practitioners, purchased unpackaged, unlabeled, and unspecified toothache medicines from a small workshop and sold them, and the medicines were found to be counterfeit, and the defendants are facing criminal penalties with civil public interest litigation.

Tang Jianbin represented Tan Mou: Tan is a community health service station legal person and head of the dental department, the amount involved is more than 360,000 yuan, the procuratorate determined that his behavior is “other particularly serious circumstances”, corresponding to more than ten years of imprisonment.

Mr. Zhang Sijia acted on behalf of Mr. Jian Moumou: Mr. Jian Moumou was the actual person in charge of a dental clinic, the amount involved was more than 70,000 RMB, corresponding to less than three years' fixed-term imprisonment.

Defense at the stage of examination and prosecution

Based on the above facts, “the supreme people's court supreme people's procuratorate on the handling of criminal cases of endangering drug safety applicable law of a number of issues of interpretation” (hereinafter referred to as the “judicial interpretation of drugs”), the drug use unit and its staff production, sales of counterfeit drugs shall be punished more severely; the production, sale, supply of counterfeit drugs amounting to more than two hundred thousand yuan less than five hundred thousand yuan, and has the use of drugs unit and its staff The production and sale of counterfeit drugs belongs to Article 141 “other particularly serious circumstances”, corresponding to more than ten years of imprisonment.

The parties to find the two lawyers, the procuratorate has been on the Tan and Jane made a prison sentence of sentencing recommendations, will be transferred to the court within a week. After the lawyer accepts the commission, on the case of the food and drug inspection institute test report and the market supervision administration of fake drugs to determine the opinion with the procuratorate to communicate with the focus of the procuratorate, the procuratorate attaches great importance to the lawyer's opinion, will be returned to the case of supplemental investigation, requiring the public security to re-testing and determination of the public security organs to report to the provincial public security bureau, requesting the public security department to dock the provincial market supervision administration of the drug supervision department to re-testing and determination of the public security bureau, but the public security bureau did not Agreed. At this point has been more than a month. In this regard, the lawyer changed the strategy, for the crime and the number, surrender circumstances and so on with the contractor to communicate again, during which the lawyer collects and organizes the gift of drugs related evidence submitted to the Procuratorate, after three months of communication, the Procuratorate agreed to Jane Moumou a plea of guilty to a suspended sentence sentencing opinion, Tan Mou sentencing opinion is three to five years, although not ideal, but also the results of the first defense.

Court stage defense strategy

1

Counterfeit Drugs Recognition Problem

According to the “Judicial Interpretation of Drugs” and the “Judicial Interpretation of Drugs” understanding and application, there is no specific drug that is being counterfeited, can be recognized as “other kinds of drugs as this kind of drugs” type of fake drugs? Can “other medicines with the same functions and subject matter posing as such medicines” be recognized as counterfeit medicines? Procuratorial authorities based on the defense that can not be identified as fake drugs, requesting the drug administration department to re-identify, although the drug administration department did not re-issue the identification of opinions, but the above qualitative doubts for the conviction of the case and more lenient and mitigating punishment to lay the foundation.

2

“Production and sale of counterfeit drugs” and “obstruction of drug administration” distinction

The logic of the determination of the two crimes is not to obtain drug-related approval documents for the production and sale of products containing pharmaceutical ingredients, need to further distinguish between the existence of drug type of impersonation, if there is drug type of impersonation, in line with the “other kind of drugs as this kind of drugs” situation and was recognized as the production and sale of counterfeit drugs; if there is no drug type of impersonation, then the drug type of impersonation should be based on Article 7, paragraph 4, and the crime of production and sale of counterfeit drugs. If there is no drug type counterfeiting, it shall be recognized as the crime of producing and selling counterfeit drugs according to the provisions of Article 7(4), i.e., “Producing drugs without obtaining the relevant approval certificates for the drugs, or selling the drugs knowing that they are the said drugs, and the drugs involved do not have the national drug standards and do not have the approved quality standards for the drugs, but the chemical ingredients are detected”, and shall be recognized as “sufficiently serious to jeopardize the human body's health” as stipulated in one of the Article 142 of the Criminal Law. “enough to seriously endanger human health”, constituting the crime of obstructing drug administration. By analyzing the two charges in detail, the Shaking Court found that the case was not only factually unclear, but the characterization was also not in accordance with the law.

3

Tan Mou and Jian Moumou's behavior of giving medicines to patients belongs to “providing” rather than “selling”.

From the “criminal law” and “drug judicial interpretation” of the definition of ‘provide’, the sale of counterfeit drugs means: “paid to others to use”, provide means: "gratuitous to others to use ". The Interpretation and Application of the Interpretation of Several Issues Concerning the Application of Law in Handling Criminal Cases of Endangering the Safety of Medicines clearly states that “whether or not consideration is paid” is used as the criterion for distinguishing between ‘selling’ and “supplying”. "The Interpretation and Application of the Interpretation of Certain Issues Concerning the Application of Law in Cases of Free Gift. In the context of this case, it is suggested that the free portion of the gift should be “provided” rather than “sold”.

4

Quantity Defense

When counterfeit drugs are sold in combination with genuine drugs, and the amount of their respective sales is indistinguishable, how to accurately determine the amount of counterfeit drugs from the perspective of favoring the defendant. The attorney defended the case from the point of view that free gifts should not be counted as sales, and in the end, the court deducted part of the amount of the real drug.

5

Determination of Surrender

The indictment did not identify the circumstances of the surrender, the defense through the reading of the file and to the defendant found that the public security organs notified the defendant by phone to let the defendant wait at the workplace, and then come over to search and bring the defendant to the public security organs interrogation, the defendant to the facts of the case are truthfully confessed to meet the determination of the self-surrender. The court adopted the opinion of the defense found that the surrender.

6

Plead guilty and independent not guilty defense

This case in the court stage to do the plea of guilty, after the preliminary to the court to submit the not guilty plea, and with the judge for many times to communicate, in the judge's organization, and the procuratorial authorities reached a plea of guilty and public interest litigation compensation after the minimum sentence program, to help the defendant lock the basis of the sentence of probation. At the same time, based on the independent defense right of the lawyer in the trial, the lawyer resolutely defended the innocence of the crime of not constituting the crime of selling counterfeit drugs based on the qualitative issue of the case, which fully demonstrated the legal disputes in the case, and also provided support for the court to reduce the sentence (from more than ten years to three years of imprisonment) more substantially based on the qualitative dispute.

Defense results

The court partially adopted the lawyer's defense opinion, and sentenced Tan Moumou and Jian Moumou to three years' imprisonment and four years' probation, and one year and three months' imprisonment and one year and six months' probation respectively for the crime of selling fake drugs. Tan Moumou and Jian Moumou recognized the court's judgment and the lawyer's defense, and did not file an appeal.

Translated with DeepL.com (free version)