First, the characteristics and patterns of related e-commerce cases
From the perspective of development model, e-commerce cases involving pyramid schemes are mainly in the field of social e-commerce; Judging from the types of cases, the lack of legal awareness of operators and responsible persons of e-commerce enterprises violates the initial intention of profit-seeking development and is the source of the surge in related cases. With the support of the state, e-commerce enterprises have made great efforts to develop, but they have taken risks and fallen into crime under the temptation of huge interests. The characteristics of pyramid selling in the field of social e-commerce are as follows: First, the non-regionalization of the network makes the development of e-commerce grow geometrically. The important weapon of e-commerce development is the intelligent popularization of internet plus, which can be said that there is no connection. The innovation of this model and the embodiment of low cost and high added value make social e-commerce show the characteristics of regionalization. Second, the field of e-commerce network involves pyramid schemes, mainly from the reasons of criminal activities. This requires distinguishing the relationship between online pyramid selling and pyramid selling, in which the four elements of behavior, level and number stipulated by law are applied to distinguish the relationship between "personnel fission" in commercial activities on social media and real pyramid selling. Subjectively, whether it is for the purpose of "defrauding property" needs to be improved in judicial practice, and the analysis of the problem of "team reward". Third, we must also consider the product problems of e-commerce companies. People and goods yard not only needs the intervention of business model, but also needs to seize the lifeline of product quality, balance the matching of product quality and sales performance and increase the number of people, and shift the growth rate of personnel fission to accumulation and research and development. E-commerce companies should not excessively pursue the number of customers, but should consider the fundamental issues of product quality and customer service experience. For the division of their sales grades, we need to think more about the calculation between people at different levels.
Second, on the determination of the organizational nature of MLM e-commerce model
One of Article 224 of China's Criminal Law: "Organizing and leading pyramid selling commodities, providing services and other business activities, requiring participants to obtain the qualification to join by paying fees or purchasing commodities and services, forming a hierarchy in a certain order, directly or indirectly taking the development number as the basis for reward or rebate, inducing and coercing participants to continue to develop others' participation, defrauding property and disrupting economic and social order", has made a comprehensive description of this crime. However, according to Article 5 of the Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Organizing and Leading MLM Activities, regarding the handling of "team reward" behavior, the organizer or leader of MLM activities, through developing personnel, requires the developed personnel of MLM activities to develop other personnel to join, forming an online-offline relationship, and calculating and paying online rewards based on the sales performance of the offline line to obtain illegal benefits, which belongs to "team reward" MLM activities. Simple "team payment" pyramid selling activities aimed at selling goods and based on sales performance are not treated as crimes. Then the difference between group paid pyramid selling and pyramid selling in the sense of criminal law is actually the difference between online payment methods, and whether pyramid selling activities are organized to sell goods or defraud property, and the purpose of pyramid selling organizations is often derived through online payment methods (for example, if the goods are not sold, or the prices of the goods seriously deviate from the market rules, the source must be the entry fee of the latecomers, and the source of selling goods with reasonable prices may be the sales income of the goods). Taking online pyramid selling as an example, the traditional forms of products and services have also undergone great changes, such as cosmetics and health care products. Take the network environment as an example. In some cases, electronic certificate or electronic goods, such as barter points, are directly purchased and then exchanged for offline services and goods. However, what is obtained online is not direct money or goods, but electronic data or electronic certificate of offline goods.
However, in judicial practice, the judgment of pyramid schemes in the sense of criminal law often focuses on the review of paid participation, hierarchy, inducement and coercion, while the review of head compensation and fraud is not so carefully screened (as long as there is an entry threshold, there will be a fee, even if there is an entry and upgrade fee, it will be regarded as a head fee, regardless of the purpose, destination, rules and online control of this fee), which leads to many teams' paid pyramid schemes.
Three, on the identification of e-commerce enterprise organization leaders
According to the provisions of Article 224 of the Criminal Law, the Supreme People's Procuratorate 20 10, Article 78 of the Provisions of the Ministry of Public Security on the Standards for the Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs, and Article 1 of the Opinions of the Supreme People's Court on Several Issues Concerning the Application of Laws in Organizing and Leading MLM Activities (hereinafter referred to as the Opinions), (providing services and other business activities in the name of selling goods, Participants are required to obtain the qualification to join by paying fees or purchasing goods and services, and form a hierarchy in a certain order, directly or indirectly based on the number of development personnel as a reward or rebate basis, to induce and coerce participants to continue to develop others to participate, defraud property and disrupt economic and social order. If there are more than 30 people participating in MLM activities in the organization, and the level is above the third level, the organizers and leaders shall be investigated for criminal responsibility according to law. The object of this crime is the organizer and leader in pyramid selling, but the active participants and other people who participate in pyramid selling are not the object of this crime. According to the Opinions, the so-called organizers and leaders of pyramid selling activities refer to those who organize and lead pyramid selling organizations, the ringleaders of pyramid selling activities, promoters, decision makers and manipulators who play the role of organization and leadership in pyramid selling activities, those who undertake important responsibilities such as planning, directing, arranging and coordinating in pyramid selling activities, or those who play a key role in pyramid selling activities. The following persons can be recognized as organizers and leaders of pyramid schemes: (1) persons who initiate, plan and manipulate pyramid schemes; (2) Personnel who undertake management, coordination and other duties in pyramid selling activities; (3) Personnel who undertake publicity, training and other duties in pyramid schemes; (4) Having received criminal punishment for organizing and leading pyramid selling activities, or having received administrative punishment for organizing and leading pyramid selling activities within one year, and directly or indirectly developing more than 15 people to participate in pyramid selling activities, with the grade above Grade 3; (five) other personnel who play a key role in the implementation of pyramid schemes and the establishment and expansion of pyramid schemes.
In judicial practice, traditional non-internet pyramid schemes are often organized by organizing lectures, collecting fees and giving kickbacks. To spread and expand pyramid schemes and obtain illegal benefits, it is easy to distinguish and identify the first three types of people. However, in the case of Internet pyramid schemes, what is more applicable now is the trend of Internet crimes (company registration, server terminals and managers are often overseas), but it has become the fifth point. In online marketing activities, traditional offline activities are replaced by online websites and internet finance, and traditional training and publicity lecturers are replaced by web pages with advertising characteristics. MLM has also been put on the cloak of investment and financial management, and promoting stable and high returns is the bait. Generally, it is not compulsory to join, but it is often to use the greed of others to lure others to join automatically with high returns as bait. This way spreads faster, has a wider scope and is more harmful to society. Tens of thousands, hundreds of thousands or even millions of people participated in pyramid schemes, and the pyramid scheme funds reached 100 million yuan. In addition to website developers, company operators, financial personnel and investment shareholders who have been active abroad for a long time, most participants in domestic pyramid schemes are often tricked into joining by browsing websites and learning relevant information from relatives and friends around them, and they are also caught in scams without knowing it. So how do you identify these people who were tricked into joining out of greed? How to grasp the scope? Because of the hierarchical structure and geometric development mode of MLM, each participant is a key node, which can be said to play an important role in the development and growth of MLM organizations. However, on the one hand, due to the communication characteristics of the Internet, its universality and high communication overlap with the lure and deception of MLM organizations, which can objectively realize independent communication and induce others to join without human intervention; On the other hand, although objectively every general participant is an indispensable part of the organizational expansion of MLM, objectively he has not conducted deliberate organizational leadership.
Through the analysis of relevant cases, in fact, I think it is necessary to distinguish between organization and leadership through the following ways: First, whether the network marketing actor plays a key role in the initiation, organization, planning, leadership, operation, publicity, training, technical maintenance, finance and other links of the website and the company behind the website, if it belongs to the above-mentioned personnel, it undoubtedly has the role of organization and leadership. Secondly, for those who are not affiliated with the MLM company, although they do not manage the operation of the company or maintain the operation of the website, if they know subjectively the illegality and falsity of the above-mentioned organizations, they will objectively use the MLM projects and publicity websites of the above-mentioned companies to actively organize the development of personnel, build their own MLM network, train MLM personnel, and defraud other people's property to obtain illegal benefits, which will also play a key role in the expansion of the MLM organization. Other people who are deceived to join, except the above two kinds of people, objectively do not collude with the above two kinds of people and actively expand pyramid schemes. Subjectively, it is not for the purpose of organizing personnel and defrauding pyramid schemes to make illegal profits. According to the principle of unity of subject and object, and adhering to the modesty of criminal law, they should be exempted from criminal punishment.
Fourth, the crime of organizing and leading pyramid schemes by e-commerce enterprises is highly integrated with the crime of illegally absorbing public deposits and the crime of fund-raising fraud.
According to Article 6 of the Opinions of 20 13, anyone who organizes or leads pyramid selling activities for the purpose of illegal possession, which at the same time constitutes the crime of organizing or leading pyramid selling activities and the crime of fund-raising fraud, shall be convicted and punished in accordance with the provisions of heavier punishment. However, at present, the development of network marketing is often characterized by publicizing projects, policies and return on investment through websites, attracting members, absorbing funds and promising return on investment under the guise of investment and financial management. These objective manifestations are highly consistent with the crime of illegally absorbing public deposits in Article 176 and the crime of fund-raising fraud in Article 192 of the Criminal Law. Therefore, in the application of law, imaginative joinder of offenses should be punished according to the principle of one crime. So how do the general participants in online pyramid schemes (for example, most of the participants in domestic pyramid schemes mentioned above are highly integrated) position themselves as victims of pyramid schemes, fund-raising participants or criminals? It depends on the actual operation mode and order of magnitude development of the corresponding e-commerce enterprises.
V. Legislative intention and case protection of e-commerce law.
As mentioned earlier, the cases of e-commerce in recent years are significant and complicated. In my opinion, this is determined by the rapid development of e-commerce and the "network nature" of entering a new stage. This "network attribute" is equivalent to a variety of roles and subjects, a variety of business practices and a variety of legal relationships intertwined, becoming complicated. E-commerce has brought great economic effects and promoted economic development. At the same time, criminal acts in its field have also brought greater social harm and wider influence.
However, not all crimes in the field of e-commerce are extremely subjective and vicious. We find that some crimes combined with e-commerce are not subjective and vicious, and some are unaware of their own crimes; There are also some enterprises whose legitimate business activities, in the process of business innovation or improper decision-making, "fall into" criminal behavior. In the cases we have experienced, some e-commerce companies adopt a "three-level distribution" sales model, and sales agents form a payment relationship according to the number of purchases; At the same time, the platform also called all sales agents to raise funds from the company for purchasing goods and developing products on the platform. In the current context, the company is suspected of organizing and leading pyramid schemes and fund-raising fraud. 20 18 enterprises were investigated, and it was a devastating investigation. Enterprise property and personal property were all seized and frozen, and key personnel were detained. Correspondingly, thousands of employees of enterprises lost their jobs, upstream suppliers closed down and downstream sales agents closed down. Such a series of registered enterprises closed down and employees lost their jobs, which not only reflected corporate crimes, but also profoundly reflected social problems.
6. E-commerce enterprises must develop in compliance.
China's "Electronic Commerce Law" establishes the principles and purposes of the development of electronic commerce in the general part, which, in my opinion, provides a reference for measuring and judging whether electronic commerce is healthy, benign and operated according to law to some extent. Article 3 of the Electronic Commerce Law stipulates that the state encourages the development of new formats of electronic commerce, innovates business models, promotes the research and development, popularization and application of electronic commerce technology, promotes the construction of electronic commerce credit system, creates a market environment conducive to the innovative development of electronic commerce, and gives full play to the important role of electronic commerce in promoting high-quality development, meeting people's growing needs for a better life, and building an open economy. Article 5 stipulates that in conducting business activities, e-commerce operators should follow the principles of voluntariness, equality, fairness, honesty and credibility, abide by laws and business ethics, participate in market competition fairly, perform obligations such as consumer rights protection, environmental protection, intellectual property protection, network security and personal information protection, undertake product and service responsibilities, and accept the supervision of the government and society.
Article 3 of the Electronic Commerce Law actually establishes the state's attitude towards the operation and development of electronic commerce, and also provides a basis for administrative organs and judicial organs to judge whether electronic commerce is a real innovation or a real crime in the process of investigating and cracking down on electronic commerce.
The e-commerce cases in recent years are of great significance and complicated. In my opinion, this is determined by the rapid development of e-commerce and the "network nature" of entering a new stage. This "network attribute" is equivalent to a variety of roles and subjects, a variety of business practices and a variety of legal relationships intertwined, becoming complicated. E-commerce has brought great economic effects and promoted economic development. At the same time, criminal acts in its field have also brought greater social harm and wider influence. Therefore, we must pay attention to the compliance development of e-commerce enterprises. Mode innovation is important, and it is also important to realize realization. But all this must be based on the premise of legal compliance, in order to develop healthily, orderly and continuously in the big waves.
(China Service Trade Association Business Big Data Branch)