First, the criminal legal risks faced by cosmetics enterprises
1, criminal legal risks unique to cosmetics enterprises
Crime of producing and selling fake and inferior products (article 140 of the criminal law)
Producers and sellers who adulterate their products, pass fake products off as genuine products, and pass unqualified products off as qualified products, with a sales amount of more than 50,000 yuan but less than 200,000 yuan, shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention, and shall also, or shall only, be fined not less than 50% but not more than two times the sales amount; If the sales amount is more than 200,000 yuan but less than 500,000 yuan, he shall be sentenced to fixed-term imprisonment of not less than two years but not more than seven years, and shall also be fined not less than 50% but not more than two times the sales amount; If the sales amount is more than 500,000 yuan but less than 2 million yuan, he shall be sentenced to fixed-term imprisonment of more than seven years, and shall also be fined more than 50% but less than two times the sales amount; If the sales amount is more than 2 million yuan, he shall be sentenced to fixed-term imprisonment of 15 years or life imprisonment, and shall also be fined more than 50% but less than 2 times the sales amount or his property shall be confiscated.
The crime of producing and selling fake and inferior products refers to the behavior that cosmetics producers and sellers adulterate cosmetics, pass fake products off as genuine products, and pass unqualified cosmetics off as qualified products, and the sales amount reaches more than 50,000 yuan. In the field of production, cosmetics enterprises deliberately manufacture fake and inferior products for the purpose of illegal profit. In the field of sales, there are two situations: first, deliberately doping and adulterating cosmetics; Second, knowing that fake and shoddy cosmetics are still sold. When an enterprise intentionally produces and sells fake and inferior products, and the sales amount reaches more than 50,000 yuan as stipulated by law, it is a crime, and the cosmetic enterprise will bear the corresponding criminal responsibility.
2. The crime of producing and selling cosmetics that do not meet the hygiene standards (Article 148th of the Criminal Law)
Whoever produces cosmetics that do not meet the hygiene standards, or knowingly sells cosmetics that do not meet the hygiene standards, thus causing serious consequences, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined not less than 50% but not more than 200% of the sales amount.
The specific acts of this crime mainly include:
(1) Units that have not obtained the Hygiene License for Cosmetic Production Enterprises illegally produce cosmetics; People who directly engage in cosmetics production without obtaining a health certificate produce cosmetics;
(2) Raw materials, auxiliary materials, containers and packaging materials that come into direct contact with cosmetics do not meet the hygienic standards prescribed by the state;
(three) the use of new cosmetics raw materials (natural or artificial raw materials used for cosmetics production for the first time in China) to produce cosmetics without the approval of the health administrative department of the State Council;
(four) the cosmetics produced do not meet the hygiene standards for cosmetics or have not passed the hygiene quality inspection;
(five) the sale of cosmetics that do not meet the hygiene standards refers to the sale of cosmetics that do not meet the hygiene standards by cosmetics business units and individuals;
"Not meeting the hygienic standards" means not meeting the hygienic standards of various cosmetics formulated by the state. The performance is that cosmetics enterprises violate the relevant cosmetics management regulations and produce and sell cosmetics that do not meet the hygiene standards, resulting in serious consequences. In order to strengthen the hygiene supervision of cosmetics, ensure the hygiene quality and safety of cosmetics and protect the personal health of consumers, the state has formulated a series of laws and regulations, such as the Product Quality Law, Hygienic Standards for Cosmetics, Regulations and Detailed Rules for Implementation. Comprehensive provisions have been made on product quality supervision, hygiene standards for cosmetics production, examination and approval of hygiene licenses for cosmetics production enterprises, hygiene quality and use safety supervision of cosmetics, examination and approval of imported cosmetics, hygiene supervision of cosmetics business, product quality responsibilities and obligations of producers and operators, and a relatively complete hygiene quality supervision and management system for cosmetics has been formed. "Causing serious consequences" in this crime mainly refers to: (1) destroying people's appearance, that is, causing appearance deformation, ugliness and dysfunction, such as blackening people's skin, spots on their faces and hair loss. ; (2) causing great physical pain, such as skin redness, burning pain and itching; (3) Causing the victim to commit suicide, divorce, mental disorder and other serious consequences.
2. Non-specific criminal legal risks of cosmetics enterprises.
Cosmetic enterprises, like other enterprises, often have commercial bribery and tax crimes in practice:
1, the crime of accepting bribes by non-state staff (Article 164th of the Criminal Law)
Whoever, for the purpose of seeking illegitimate interests, gives money or property to employees of companies, enterprises or other units, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and shall also be fined.
Commercial bribery refers to the behavior that cosmetics enterprises pay bribes to other units or individuals by property or other means in order to sell or buy goods. For the purpose of crowding out competitors, cosmetics enterprises provide or promise to provide certain benefits to counterparties and their employees or their agents in order to obtain benefits in business activities such as selling or buying goods or providing services, so as to realize unfair competition in transactions.
2. Non-state staff accepting bribes (Article 163 of the Criminal Law)
Employees of companies and enterprises who take advantage of their positions to ask for or illegally accept other people's property and seek benefits for others, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; If the amount is huge, he shall be sentenced to fixed-term imprisonment of not less than five years and may also have his property confiscated.
Staff members of companies and enterprises who, in economic exchanges, violate state regulations and accept kickbacks and service fees in various names, which are owned by individuals, shall be punished in accordance with the provisions of the preceding paragraph.
The specific performance is mainly the behavior that the staff of cosmetics enterprises ask for the financial affairs of affiliated units and accept kickbacks and handling fees in various names without recording them in the accounts.
3. Crime of tax evasion (Article 20 1 of the Criminal Law)
Taxpayers use deception or concealment to make false tax returns or not to declare in order to avoid paying a large amount of taxes. Taxpayers who make false tax returns or fail to declare by deception or concealment, and evade paying a large amount of tax, accounting for more than 10% of the tax payable, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also be fined; If the amount is huge, accounting for more than 30% of the tax payable, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.
If the withholding agent fails to pay or underpays the tax withheld or collected by the means listed in the preceding paragraph, and the amount is relatively large, it shall be punished in accordance with the provisions of the preceding paragraph.
If the acts mentioned in the preceding two paragraphs are carried out many times without being dealt with, they shall be calculated according to the accumulated amount. Mainly as follows:
(1) making false tax returns or not making tax returns by means of deception or concealment, and the amount is more than 50,000 yuan, accounting for more than 10% of the total tax payable, and the tax authorities still fail to pay the tax payable, late payment fees or accept administrative punishment after issuing a notice of recovery according to law;
(2) Having been criminally punished for tax evasion within five years, or having been administratively punished by the tax authorities for more than two times, and the amount of tax evasion is more than 50,000 yuan, accounting for more than 10% of the total tax payable;
(3) Failing to pay or underpaying the tax by means of deception or concealment, and the amount is more than 50,000 yuan.
Second, measures to prevent criminal risks.
1, strengthen the awareness of corporate legal risk prevention.
The main person in charge of an enterprise must fully understand the importance and urgency of preventing criminal legal risks, correctly understand and understand the causes and development characteristics of corporate legal risks, study work measures, and really attach great importance to the legal construction of enterprises ideologically. Attach importance to and strengthen the construction of enterprise legal workers, and provide them with legal training when necessary to enhance their legal awareness. Strengthening the construction of enterprise legal workers is the organizational guarantee to prevent legal risks. Actively promote the construction of enterprise legal adviser system, hand over professional problems to professionals, and guard against criminal legal risks according to the guidance of legal advisers.
2. Strengthen health awareness and operate legally.
The production and sales of cosmetics should strictly abide by the relevant provisions of laws and regulations such as product quality law, regulations and detailed rules for implementation, and the production and sales should conform to the hygienic standards of various cosmetics stipulated in the Hygienic Standard for Cosmetics. Specific measures, such as:
1) Cosmetic manufacturers:
(1) Obtain the hygiene license of the cosmetics production enterprise and accept the hygiene supervision.
(2) Improve the health inspection system for personnel directly engaged in cosmetics production.
(3) The use of new raw materials to produce cosmetics, the production of cosmetics for special purposes and the first import of cosmetics must be approved by the relevant state departments.
(4) The production of non-special cosmetics must be filed with the relevant provincial regulatory authorities.
(five) the cosmetics produced by the production enterprises can only leave the factory after passing the sanitary quality inspection.
2) Cosmetics sales-oriented enterprises:
It is forbidden to adulterate or adulterate cosmetics, pass the fake as the real, pass the shoddy as the good, or pass the unqualified products off as qualified products, and it is forbidden to sell cosmetics that knowingly do not meet the hygiene standards of cosmetics, and indicate the source of cosmetics.
3. Improve the enterprise standard system and management system.
Management system is the foundation and vitality of an enterprise, and a standardized system can effectively prevent legal risks. Cosmetic enterprises should guard against criminal legal risks and flourish in the cosmetic market. A perfect normative system is the guarantee, and a strong supervision mechanism should be established within the enterprise to establish the pivotal position of corporate legal director in cracking down on illegal crimes. Establishing and perfecting legal internal control norms is not only conducive to improving the management level of the company, but also one of the effective means to prevent criminal legal risks.