销售假冒注册商标的商品罪疑难问题研究

理论界对销售假冒注册商标的商品罪研究较多,但仍有许多新问题,例如对本罪"明知"和"既未遂"的认定尚无定论,大有讨论的必要。销售假冒注册商标的商品罪以明知是假冒注册商标的商品为前提,而对于明知的要求是知道或者应当知道;对于"应当知道"的理解,应坚持主客观相一致的原则,综合案件的各种证据进行推定;对于销售假冒注册商标的商品罪的未遂形态认定,应充分利用相关刑法理论和实践经验;在既未遂形态竞合的情况下,应采用既遂吸收未遂的方法进行定罪处罚,但在量刑上应进行适当的修改、改善,以期对司法实践有所助益。

Research on the Difficult Problems on Commodity Crimes of Selling False Registered Brands

Though there have been many studies on commodity crimes of selling false registered brands among scholars,there are still many new problems.For example,there are no definitions for the items,"awareness" and "unsuccessful committment",which is necessary for us to discuss.The commodity crimes of selling false registered brands takes "awareness" as premise.However,"awareness" means that the criminals know or should know their guilts.The understanding of that "criminals should know their guilts" should be based on the agreement between subjectiveness and objectiveness.Furthermore,the understanding should be based on comprehensive study on proofs involved in the case.The definition on the "unsuccessful committment" of the commidity crimes should be based on criminal law and practical experience.When "committment" is mentioned together with "unsuccessful committment",we should apply the method that "committment" includes "unsuccessful committment" to convict and punish the that criminals.While as to the measurement of penalty,we should make some revision or improvement,so as to be helpful to judicial practice.