生产、销售伪劣产品罪立法本意之争及解读

摘要

For a long time, it is a vexed question in academia that the crime of producing and selling fake products is the selective charge or not.Both the positive theory and the negativism are difficult to accords with the legislation and the judicial interpretation.This charge is neither the selective charge nor the single charge, and it is the charge of complex act.It means that the perpetrating act of this charge is made up with producing and selling, which are the relationship between means and purposes.The pure producing and purchasing fake products is only possible to establish the crime of unfinished form, and it will establish the consummated crime only after the fake products are sold.If the value of goods and the amount of sales coexist, the absorption principle and the way of conversion meth-od should be used to amount to the total sum of crime.%生产、销售伪劣产品罪是否属于选择性罪名、是否存在未完成形态的问题在学界长期争论。无论是肯定论还是否定论都难以与立法或司法解释相吻合。本罪既非选择性罪名，亦非单一性罪，而是复合行为型罪名，即本罪实行行为由生产行为和销售行为有机组成，两者是手段与目的关系。单纯的生产或购买伪劣产品行为只能成立未完成形态，只有将伪劣产品予以销售的，才能成立犯罪既遂。货值金额与销售金额并存的，应采取吸收原则和“单向折算”合计涉案总额的方法处理。