生产、销售伪劣产品罪之未遂形态再探

On the Attempted Form of the Crime of Producing and Selling Fake and Inferior Products

摘要: 生产、销售伪劣产品罪是生产、销售伪劣商品犯罪类案件中数量最多的，社会危害性也颇为严重，应予以严厉打击。生产、销售伪劣产品罪保护的法益是市场经济秩序与消费者合法权益。当前司法解释对生产、销售伪劣产品罪未遂形态的规定尚存诸多学理之争。销售金额是本罪的成立条件，未达五万元不构罪，超过五万元则按所处量刑档次定罪量刑。笔者认为，相较于销售金额，货值金额更符合当下和未来生产、销售伪劣产品罪的罪刑相适应的要求。本文主要回顾法律对生产、销售伪劣产品罪及该罪未遂形态的规定，并对各学理纷争进行例举与评析，分析争议背后的原因，进而提出对该罪未遂形态进一步修正与规范的见解。

Abstract: The “Crime of Producing and Selling Fake and Inferior Products” is the most serious one in the type of crime of producing and selling fake and shoddy commodities, which is very harmful to the society and should be dealt with severely. The legal interest protected by the Crime of Producing and Selling Fake and Inferior Products is the order of market economy and the legitimate rights and interests of consumers. At present, there are many academic disputes about the attempted form of the Crime of Producing and Selling Fake and Inferior Products in judicial interpretation. The amount of sales is the establishment condition of this crime. If the amount of sales is less than fifty thousand yuan, it does not constitute this crime and there is no attempt; if the amount of sales is more than fifty thousand yuan, it shall be convicted and sentenced according to the sentencing level of the amount of sales. In my opinion, compared with the amount of sales, the amount of goods value is more in line with the current and future requirements of the “Crime of Producing and Selling Fake and Inferior Products”. This paper mainly reviews the provisions of the law on the “Crime of Producing and Selling Fake and Inferior Products” and the attempted form of this crime, and enumerates and comments on various academic disputes, analyses the reasons behind the disputes, and then puts forward the views on the attempted form amendment of the crime.