21 Million 510 Thousand Of Farmers' Counterfeit Brands Were Investigated: The Whereabouts Of Key Evidence Are Unknown

Farmers' fake sweaters were sentenced to "sky high penalty" investigation

Core tips from the sale of profits, but ten thousand yuan, but to bear 21 million 510 thousand yuan "sky fine."

In December 2010, Li Hongying, a farmer in Guiyang County of Chenzhou, Hunan, and his wife, were taken to Inner Mongolia's Ordos Dongsheng area detention center.

In September 21, 2011, the Ordos court in Inner Mongolia "counterfeited registration".

In from December 21 to 22, 2011, an interview with reporters found that there was a series of questions behind the "sky high penalty": "inter provincial pursuit" came suddenly - the "key evidence" was unknown. Meritorious performance was ignored.

Reporters on the verdict of the case there are many doubtful points to call the middle court of Erdos, a staff member said, "the case has appealed to the the Inner Mongolia Autonomous Region high court, is being tried, it is not easy to respond to the position."

With regard to the question of "sky high penalty", many practising lawyers and law experts also said that Li Qing had a huge amount of sales and violated the intellectual property rights of the regular manufacturers, which should be held responsible, but the judgment was not commensurate with the facts.

In December 23, 2011, the reporter once again came to Li Qing to be accused of selling fake.

21 million 510 thousand yuan, what is the concept of a farmer in Chenzhou, Hunan, whose average annual net income per capita is only 5208 yuan? After a rough calculation, it is a sum of money that he needs not to eat or drink for 4130 years to save enough.

And specifically to the Chenzhou Guiyang County farmers Li Qing family, this is a "they can not afford to live for many years," the "sky fine".

In September 21, 2011, the Ordos court in Inner Mongolia sentenced Li Qing to 5 years' imprisonment and a fine of 21 million 510 thousand yuan for his crime of counterfeiting a registered trademark.

Soon, the matter was spread to the major websites and forums, and the topic of "sky high penalty" triggered widespread controversy among netizens.

All this starts from December 15th 2010.

1. unexpected "inter provincial pursuit"

In December 15, 2010, Li Hongying gave her husband Li Qing's lunch as usual, and left behind to help see the shop.

4 months ago, they scramble together to raise about 100000 yuan to start the fund, rented the Chenzhou rich people market number 2403 shop, does "the Ordos", "Heng Yuan Xiang" and so on well-known wool sweater wholesale sale business.

At 14 p.m. that day, her husband Li Qing went to the washroom outside the market for convenience, leaving Li Hongying to watch the shop alone.

At that moment, 3 strangers came to the shop.

Li Hongying later learned that "the two plainclothes is the police of Ordos, and a policewoman is a local Chenzhou".

After showing their credentials, they sent Li Hongying and Li Qingdai, who later returned to the shop, to the local police station on the grounds of "things need to cooperate".

"When we arrived at the police station, we knew that they said," you sell fake goods in your shop, "we need to cooperate with the investigation to make sure the situation is clear.

In December 21, 2011, remembering what happened a year ago, Li Hongying still had a lingering fear.

Subsequently, two couples were imprisoned into the local detention center for 3 days, and were eventually taken to Inner Mongolia Ordos City.

In the Dongsheng detention center of Ordos, Li Hongying was examined and pregnant. After handling the bail pending procedure, she returned to Chenzhou.

"In Ordos, the police have been interrogating where my goods come from."

Li Hongying pairs

The reporter said, "he (Li Qing) has never been involved in sweater business, and I often watch my children and cook at home, but I occasionally go to the store to take care of it."

Therefore, Li Hongying is not clear about her husband's purchase channels, purchase prices, sales and so on.

After returning to Chenzhou, Li Hongying was faced with the fact that the shop was shut down and the sweater supplier went to court for pursuing hundreds of thousands of payments, causing the property to be frozen by the court.

But she had to pull herself together and run around for a lawsuit against her husband, Li Qingqing.

The past half a year has passed.

Li Hongying and so on came from husband Li Qing who was sentenced to 5 years' imprisonment and a fine of 21 million 510 thousand yuan by the Inner Mongolia Ordos court for committing a crime of counterfeiting registered trademarks.

The result.

After obtaining the judgment message, Li Hongying said that the two husband and wife earned ten thousand yuan from the sale, but they had to pay the astronomical penalty. The judgment was unfair.

And he said he had no ability to pay the fine, and he would not pay it. "The penalty is too high. I can't afford to pay for it according to this figure."

In fact, in addition to Li Qing family's fairness and doubts about the verdict of this case, Li Qing, a lawyer for first instance trial, told reporters that Hunan Xin Dao law firm, Nan Xin Dan, told him that he had his own lawyer's opinion on the submission of evidence, the identification of illegal gains, and Li Qing's meritorious service.

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2. "key evidence" missing

According to the verdict of the Ordos intermediate court, the total number of counterfeit Ordos sweaters per unit of 2180 yuan is 4351. The price tag of the counterfeit Ordos sweater is 17403 yuan at each price tag of 21 million 510 thousand yuan, and the counterfeit "Heng Yuan Xiang" sweater is 4433 pieces each with a price tag of 968 yuan each.

The total sum of three items is 26187, and the tag price is 43013364 yuan.

The price tag of more than 4300 yuan was identified by the court as "illegal business amount".

Finally, according to this "illegal business amount", Li Qing was sentenced to 5 years' imprisonment and a fine of 21 million 510 thousand yuan.

"The court is in accordance with the" 43013364 yuan "illegal business amount" half the conversion of the fine.

In December 21, 2011, Nan Xin Dan gave a detailed explanation to the reporter on the "fine penalty" of the case and put forward his own different views.

"According to the relevant laws, the amount of illegal business should be calculated according to the actual sales price, but not the tag price."

Nan Xindan said, in fact, whether the sale records of Taobao on Taobao or the sales list of his computer host show that the price of his sweater is 100 yuan, 120 yuan and 150 yuan respectively.

Li Qing's computer mainframe was seized by the Ordos police in December 15, 2010.

"This is a vital evidence."

Nan Xin Dan stressed, "but in the trial of this case, the procuratorate did not submit the evidence. I also put forward a lawyer's opinion on the matter to the local Procuratorate, but the procuratorate did not reply to it. It was only in the court's judgment that it was taken by a" investigation organ without concealing evidence. "

According to Li Hongying, her husband, Li Qing, was carrying a computer mainframe to the Ordos, but nobody knows where the computer host has gone.

The reporter called the Erdos Public Security Bureau Economic Investigation Detachment, and a staff member refused the reporter's interview request on the grounds of "the case's handling official's business trip".

In fact, Li Qing, another defense counsel and lawyer of Inner Mongolia Xinguang law firm, also raised objections to the Ordos Intermediate Court on the "illegal business amount" and submitted Li Qing's sales CD-ROM to defend it. The CD-ROM recorded that Li Qing sold the Ordos sweater at a price of 100 yuan, 120 yuan and 150 yuan respectively, and the average selling price on the Internet was 147.54 yuan.

But the Ordos intermediate court finally did not accept Wang Fukui's defense opinions.

The court held that the actual sales amount of the infringing goods could not be identified, so the "tag price" was applied, and the tag price was more than 10 times the actual price of the clothing.

3. "neglected" meritorious service

"In addition to keeping my lawyer's opinion on the" illegal business amount ", Li Qing's meritorious performance has been ignored, and I have my own opinion.

Nan Xin Dan lawyer told reporters, "Li Qing accused himself of being on line Zhou Jinzhu in the case, which is a major meritorious performance, but the court did not confirm it."

According to the judgment of the Ordos intermediate court, defendant Li Qing provided the name and contact method of Zhou Jinzhu, the same criminal. The judicial authorities arrested Zhou Jinzhu, the defendant, and could not be identified as assisting the judicial authorities to arrest co offenders.

The defense counsel of Li Qing, the defendant, who has rendered meritorious service for Li Qing and requests for a lighter, mitigated or exempted punishment, shall not be adopted.

"In this case, Li Qing and Zhou Jinzhu are prosecuted on different charges. The same case is different from each other. Li Qing accuses the accomplices. According to the Supreme People's court's interpretation of several issues concerning the application of the law to surrender and meritorious service, and the opinions on specific issues concerning Surrender and meritorious service, Li Qing should be meritorious.

South Xin Dan lawyers pointed to the relevant legal provisions, told reporters.

In fact, the jurisdiction and applicable accusation of the case once became the focus of Internet controversy.

In addition, the netizens "Li Gen" who exposed the case to the Internet put forward many suspicions in the net posts. For example, the investigating organs in this case violated the procedural provisions in the process of handling cases, such as the search pcripts without the signature of the searched persons, and the injured party (Ordos Cashmere Group) as witnesses when searching.

These doubts have not been clarified and responded so far.

In December 22, 2011, a number of doubtful points on the verdict of the case were sent to the middle court of Erdos. A staff member said, "the case has been appealed to the the Inner Mongolia Autonomous Region High Court and is being tried. It is not easy to respond to the statement."

Expert opinion

The "sky high penalty" not only caused the "fines" of the case to be "empty", but also made the public doubt whether such a huge fine was handed over to the state treasury in accordance with the law. The biggest penalty is the deprivation, deterrence and pformation of the criminals. Li Qing is a farmer. The court may not fully investigate the property status of the suspect before making a high price penalty, and only judge it according to the "tag price".

The result of such a ridiculous decision is that it is difficult to play the real role of the fine.

Chen Pingfan lawyer, Hunan Jinzhou law firm

Judging from the verdict of the case, such a high standard protection is not very suitable for our current social and economic development as well as the status quo of intellectual property protection.

At present, China's intellectual property rights protection is at a beginning stage. Although legislation has been in line with international standards, there are still some problems in law enforcement, especially in the popularization of law. This case is of positive significance in education and warning, which weakens its legal significance. From the long-term perspective of intellectual property protection, such heavy penalties should be more prudent.

- director of the China Law Society's Intellectual Property Law Association and Professor He Lianhong of Central South University Law School

Li Qing sells counterfeit brand sweaters, violates the legitimate interests of trademark owners, and should be held accountable. However, he can not regard the protection of intellectual property rights as a single market behavior or a government act. It should be a growth mechanism for the government to launch a counterfeiting storm in the field of intellectual property protection, rather than the so-called "warning".

Professor Li Shunde, deputy director of the intellectual property center of the Chinese Academy of Social Sciences and professor of Law Research Institute