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【裁判要旨】根据《刑法修正案(八)》对销售假药罪的规定,销售假药罪虽然已由危险犯变为行为犯,但销售假药罪仍然存在未遂形态,因此有必要进一步明确销售假药罪既遂、未遂的认定标准,以统一裁判尺度。司法实践中,销售假药罪应当以假药进入交易环节作为认定犯罪既遂的标准,而不论是否已经成交或者已经付款。如果由于行为人意志以外的原因而未进行实质性的假药交易行为,则属于犯罪未遂。
According to the provisions of the “Criminal Law Amendment (8)” on the crime of selling counterfeit drugs, the crime of selling counterfeit drugs has now become a crime committed by dangerous criminals, but the sale of counterfeit drugs still exists in an attempt to form, it is necessary to further clarify The crime of selling counterfeit drugs has been completed, attempted to determine the standard, in order to unify the referee standards. Judicial practice, the crime of selling counterfeit drugs should be entered into the transaction as counterfeit drugs as a criminalization of the established standards, regardless of whether the transaction has been made or has been paid. It would be an atypical attempt to conduct a substantive fake drug transaction for reasons other than the will of the perpetrator.