clause
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(Revised according to the Seventh Amendment to the Criminal Law) The provisions of Article 224 of the Criminal Law: whoever organizes and leads business activities such as selling goods and providing services, requires participants to obtain the qualification to join by paying fees or purchasing goods and services, and forms a hierarchy in a certain order, directly or indirectly using the number of developers as the basis for remuneration or rebate, and induces or coerces participants to continue to develop other people&;s participation, defrauding property and disrupting economic and social order, shall be sentenced to less than five years or concurrently; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years and fined. [1]
key component
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Object elements
The object of this crime is a complex object, which not only infringes on the property ownership of citizens, but also infringes on the market economic order and social management order. The object of this crime is citizens&; personal property, usually money. MLM often accompanies and drives up prices, which infringes on many social relations and legal objects.
Objective elements
Objectively, this crime is manifested as an act of violating regulations, organizing and engaging in pyramid schemes, disrupting market order and serious circumstances. However, not all pyramid schemes constitute crimes. If the circumstances are general, they are general illegal acts and shall be punished by the administrative department for industry and commerce. Only if the perpetrator&;s pyramid scheme is serious will it constitute a crime, and criminal responsibility shall be investigated according to law. In addition, it is necessary to distinguish between pyramid selling crime and illegal behavior in direct selling activities. If there are deceptive and misleading behaviors such as exaggerating the income of direct sellers and product efficacy in direct selling, the direct selling supervision department should impose administrative punishment, which should not be regarded as pyramid selling crime.
The determination of serious circumstances should be comprehensively measured by combining the amount involved in pyramid selling, the number of pyramid selling developers, the means used in pyramid selling, the impact caused by pyramid selling and other factors.
Subject elements
The subject of this crime is a general subject, and any natural person who has reached the legal age of criminal responsibility and has the ability of criminal responsibility can constitute this crime. This crime is mainly investigated for the organizers of pyramid schemes and the active participants who have repeatedly introduced, deceived and coerced others to join pyramid schemes. For the general participants, they will not be investigated.
According to the provisions of Articl《关于审理单位犯罪案件具体应用法律有关问题的解释》 on June 18, 1999: &”;If an individual is established to carry out illegal and criminal activities, an enterprise or institution commits a crime, or if a company, enterprise or institution is established and its main activity is to commit a crime, it shall not be punished as a unit crime.&”; Therefore, in accordance with the provisions of judicial interpretation, companies specializing in pyramid schemes are not treated as unit crimes, but their organizers and main participants are convicted and punished as natural person crimes.
Subjective elements
Subjectively, this crime shows direct intention and has the purpose of illegal profit. That is to say, the perpetrator knows that he is carrying out pyramid schemes, which is prohibited by national laws and regulations, but still carries out such acts in order to achieve the purpose of illegal profit, and he is hopeful and actively pursuing the harmful results. [2]
Identification standard
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First, the definition of the main body of organizing and leading pyramid schemes
MLM organization is a pyramid-type sales model, so it is more difficult to determine the organization and leadership behavior.Difficulties. Generally speaking, in MLM organizations, except for the bottom salespeople, there are organizational leadership behaviors at other levels, but the legislative intention of criminal law is not to crack down on all MLM personnel, so it is particularly important to correctly understand the organizational and leadership behaviors in MLM organizations. According to the latest judicial interpretation, the so-called organizers and leaders of pyramid selling activities refer to the promoters, decision makers and manipulators who play an organization and leadership role in pyramid selling activities, as well as those who assume important responsibilities such as planning, directing, arranging and coordinating in pyramid selling activities, or who play a key role in pyramid selling activities. The author believes that in combination with the judicial interpretation, the organizational leadership behavior can be understood as follows in practice:
1. When the pyramid scheme was launched, publicity activities such as determining the form of pyramid scheme, purchasing goods, formulating rules, developing offline and organizing division of labor were implemented; In the implementation of pyramid selling, actively participating in all aspects of pyramid selling management, such as giving lectures, encouraging, coercing others to join, etc., belong to organizations and leaders.
2. The behavior of &”;organization&”; should be interpreted restrictively, that is, the organization has its own products or services, an independent organizational system and independent cost accounting. Therefore, in a MLM organization, the so-called organizers only include partners or companies, and others should not be treated as organizers.
3. The leader refers to the person who plans, directs, arranges and coordinates the behavior of MLM organizations in the organization. Not only the original promoters, but also the senior managers who play a key role in MLM organizations should be recognized as leaders. The identification of leaders&; identity should be considered from three aspects: the scope of management, the level in the marketing network and the amount involved, and the specific problems should be analyzed in detail.
Second, it is about the division of criminal responsibility for organizing and leading MLM activists.
1. Crime and non-crime. We should distinguish between multi-level remuneration in pyramid selling and direct selling activities. Although both of them are paid at multiple levels, there are still great differences. First, from the point of view of whether or not to pay the entry fee, the multi-level paid salespeople are not required to pay a high entry fee when obtaining the qualification certificate, while the head-pulling pyramid scheme needs to pay a high entry fee or buy &”;props&”; equivalent to the high entry fee, otherwise they cannot get the entry qualification; Second, from the perspective of business objects, multi-level compensation is oriented to selling products, commodity pricing is basically reasonable, and there is also a return guarantee. However, there is no sales at all, or it is just a &”;prop commodity&”; with a serious deviation between price and value, and no return is allowed, mainly to develop the number of &”;offline&”; people; Third, from the source of personnel&;s income, multi-level remuneration is mainly based on the sales performance and bonuses of employees, while head-pulling pyramid schemes mainly depend on the number of &”;off-line&”; people and the high entry fees of new members; Fourth, from the conditions of the existence and maintenance of the organization, the survival and development of multi-level paid direct selling companies depend on product sales performance and profits. However, the MLM organization directly depends on whether there are new members joining at a certain rate.
2. This crime and that crime. According to the relevant judicial interpretation, organize and lead to promote the sale of goods.In the name of business activities such as providing services, 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. The number of developers is directly or indirectly used as the basis for remuneration or rebate, which induces and coerces participants to continue to develop pyramid schemes in which others participate, defrauds property and disrupts economic and social order. If there are more than 30 people organizing and leading pyramid schemes and the hierarchy is above the third level, the organizers and leaders shall be filed for prosecution.
According to the provisions of Article 224th of the Criminal Law, the organizers and leaders of pyramid selling activities shall be investigated for criminal responsibility according to law. On the principle of saving the majority, the administrative department for industry and commerce may impose administrative penalties on the general offenders according to the regulations prohibiting pyramid selling. When the participants who organize and lead pyramid selling activities do not meet the standards of number and level but violate the market order or the licensing system, they should be treated differently according to their status and role in pyramid selling activities.
Sentencing standard
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Organizations and leaders who, in the name of business activities such as selling goods and providing services, require participants 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 using the number of developers as the basis for remuneration or rebate, induce or coerce participants to continue to develop pyramid schemes in which others participate, defraud property and disrupt economic and social order, shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years and fined.
Prosecution standard
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Articl《最高检察院、公安部关于公安机关管辖的追诉标准的规定（二）》, promulgated and implemented on May 7, 2010, stipulates that in the name of business activities such as selling goods and providing services, organizations and leaders require participants to obtain membership qualification by paying fees or buying enough goods and services, and form a hierarchy in a certain order, directly or indirectly using the number of developers as the basis for remuneration or rebate, inducing and coercing participants to continue to develop others to participate, and defrauding property. In pyramid schemes that disrupt economic and social order, there are more than 30 people suspected of organizing and leading pyramid schemes, and the level is above the third level. The organizers and leaders should be filed for prosecution.
Typical case
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Pacific direct purchase case or the biggest pyramid scheme since the founding of Chengxin
On June 1, 2012, Tang Qingnan, former chairman of Wonderful Life Investment Development Co., Ltd. (hereinafter referred to as &”;Wonderful Life Company&”;), was convicted of organizing and leading pyramid schemes.
Dramatically, Tang Qingnan first entered people&;s field of vision, not because of suspected pyramid schemes, but because he has been in the past two years.
Pacific direct purchase pyramid scheme
Pacific direct purchase pyramid scheme
&”;Great Achievements&”; in Soci—— has invested in Jiangxi&;s Top Ten Men of the Year, Pioneer of Integrity Innovation, Influential Person of Harmony in 2010, Top Ten Outstanding Integrity Entrepreneurs and many other honors.
When Tang Qingnan shouted &”;the world&;s first new model of creating wealth&”;, he was suspected of engaging in pyramid schemes and illegal fund-raising in disguise because he was suspected of pulling people&;s heads and wholesaling &”;future profits&”;.
The whole floor is provided free of charge locally.The hardcover office of the building
According to public information, Wonderful Life Company was incorporated in Jiangxi Industrial and Commercial Bureau on July 13th, 2007, and its e-commerce platform &”;Pacific Direct Purchase Official Network&”; was officially put into operation on December 18th, 2008. On September 20, 2010, as a leading e-commerce enterprise in Nanchang, the official website of Pacific Direct Purchase successfully entered Honggu Creative Industry Park in Huigu, Jiangxi.
Since the website was launched, it has always appeared in front of the public as a good image of a scientific and creative website. On the one hand, the official website of Pacific Direct Purchase claims to subvert the traditional business pattern and create a brand-new BMC model, providing consumers with a platform of &”;saving money and making money&”; and &”;employment and entrepreneurship&”;; On the other hand, it puts forward the business strategy of &”;integrating resources to win the world&”; and &”;comprehensively integrates social resources&”; to build a super &”;light&”; company with the advantages of traditional modes such as virtual operation, e-commerce, supply chain, call center and finance.
By the end of December, 2011, 94 well-known domestic online merchants, including JD.COM Mall, Vanke Eslite, Red Kids, Dangdang, Snacks, Yemaijiu, Ctrip.com and Patriot, had settled in the &”;Integrity Rebate Merchants Alliance&”; of the official website of Pacific Direct Purchase. There are more than 20 million kinds of goods sold and purchased on this platform.
In 2010, the average daily transaction volume of the official website of Pacific Direct Purchase was as high as one million yuan, and the total annual transaction volume was nearly 300 million yuan, of which the total annual transaction volume of mobile, telecom and Unicom&;s top-up payment business was as high as 190 million yuan.
In 2011, only Unicom, mobile and telecom services of the website exceeded 100 million yuan per month, and the monthly commodity trading of the website exceeded 13 million yuan in the second half of the year.
With such &”;advanced&”; business philosophy and strong turnover, the official website of Pacific direct purchase has been favored by the local people. The local government not only provided a whole floor of finely decorated office for the official website of Pacific Direct Purchase for free, but also provided many preferential policies.
However, it is such a super company with a &”;global vision&”; that now there are great changes, such as the arrest of the chairman of —— Company, great changes in internal personnel, the reorganization of 13 major departments into 6 departments, and the sharp drop in business.
On July 10th, 2012, the reporter of Youth Daily came to Honggu Creative Industry Park in Huigu, Jiangxi Province, and found that the gate of Wonderful Life Company was guarded by the police, and visitors had to get permission from the police before they could enter.
The police on duty that day told the Youth Daily reporter that they were stationed on April 15, and seven policemen will be on duty every day. Responsible for receiving distributors from all over the country according to the orders of superiors. There were more visits in April and May. In June, there were long queues of distributors to understand the situation. Later, there were fewer and fewer distributors. When the reporter offered to interview the insiders of the company, he was rejected by the police on duty.
The reporter of Youth Daily managed to enter Wonderful Life Company. The company was quiet and many offices were locked. The reporter passed the general manager&;s office and looked through the crack of the door. The desk was covered with a thick layer of ash. At the corner of the promenade, there is an office with a sign of &”;comprehensive office&”;. The reporter pushed the door open, and the light inside was dim and dozens.The computer screen is on, and there are about forty or fifty people in the room. They seem to have nothing to do.
A girl surnamed Xiong told the Youth Daily reporter that the shopping website under Wonderful Life Company is legal and can operate normally. However, according to a person familiar with the matter, the official website of Pacific Direct Purchase didn&;t stop operating because there were too many people involved in this website. The website has 10 million members and nearly 100,000 distributors in three years since its establishment. Because there are too many people involved, it must be handled carefully, and the website can&;t be shut down.
BMC distributes virtual future profits, sucking billions of dollars crazily.
In the investigation, the reporter of Youth Daily obtained such a set of data: As of September 30, 2011, the total amount of &”;honest consumption&”; on the official website of Pacific Direct Purchase was 4.5 billion yuan, of which the total loan was 1.7 billion yuan and the paid-in amount was 2.7 billion yuan, and 2 billion yuan had been returned, leaving 700 million yuan. There are 78,472 qualified and above credit channel providers and more than 9.12 million real-name registered members. There are 6126 convenience concept stores of Wonderful Life Company. Moreover, the relevant data are changing every day and are on the rise.
In the past three years, it has recruited 100,000 distributors and billions of dollars, claiming to have more than 10 million members all over the country. How was this &”;achievement&”; once considered a miracle by the outside world obtained?
As early as its establishment, the website launched a so-called new marketing model BMC, which caused great controversy in the industry.
In BMC, B (abbreviation of B(Business) refers to enterprises, C (abbreviation of C(Customers) refers to consumers, and M (abbreviation of M(Medium) refers to the platform built between enterprises and consumers. And the key point in this model is m.
After the establishment of the website, the company used the Internet to develop credit channel providers (called agents before December 2008) throughout the country, and launched a rebate system for members&; consumption points. Fill it in online and you can register as an ordinary member for free.
Consumption points refer to the profits generated by members after actual consumption on the official website of the company&;s Pacific direct purchase, all of which are in PV. &”;PV&”; is the original virtual currency of the website: every product on the website is marked with PV value in addition to the price of the product. The PV value is the profit generated by selling this commodity, and 1PV is equivalent to 7 yuan.
Ordinary members at the bottom can only enjoy the bonus return of shopping, and can only get the promotion rebate of more than 5% of the deposit if they reach the level of silver card members or above; When the consumption score reaches 1000PV or the deposit of 7,000 yuan is paid directly, ordinary members can be promoted to &”;honest channel providers&”;. At this time, other channel providers can be developed, and promotion rebates of more than 20% of the deposit and other corresponding additional rewards can be obtained.
In Wonderful Life Company, the distributors are divided into 12 grades according to the consumption points. The more PV, the higher the grade, and the more bonuses they get.
According to the &”;Consumption Points Rebate Proportion Table&”; formulated by the company, you can get a rebate ratio by accumulating PV, and the rebate ratio multiplied by the PV value in your hand is the bonus you can get. For example, if there is 5000PV, the bonus ratio is 26%, that is, 9100 yuan will be returned. From 100PV to 1000 million PV, the bonus ratio climbed from 10% to 71%, and the bonus soared from 70 yuan to 49.7 million yuan.
According to the investigation by the reporter of Youth Daily, members can get 0.3 PV values for every 100 yuan spent on the website, and it takes about 150,000 to 200,000 yuan to accumulate to 1000PV. According to this calculation method, it is very difficult to get a large proportion of bonuses through personal consumption.
In fact, most channel providers mainly obtain PV through the following three methods: first, pay the deposit, the higher the level, the more the deposit, and the deposit of 7,000 yuan can get 1000PV, which can make them &”;qualified credit channel providers&”; and the deposit of 70 million yuan can get 10 million PV and become the highest-level &”;global credit channel providers&”;; The second type is the PV generated by the deposit paid by the directly developed offline personnel; The third type is the PV generated by the deposit paid by the off-line redevelopment personnel (that is, indirectly off-line). Points can be accumulated infinitely. By accumulating points, the level can be upgraded, and then a higher rebate ratio can be obtained. For example, if it is accumulated from 1000PV to 5000PV, it will be directly upgraded from a qualified credit channel provider to a five-level credit channel provider.
Another way to get a lot of PV quickly is to buy PV from a high-level channel provider. Senior channel providers apply for PV with low discount from the company, and increase the price layer by layer and wholesale it to lower channel providers to earn the price difference in the middle.
Liu Ming (pseudonym), a qualified credit channel provider, was very excited when talking about wholesale PV to reporters: &”;At that time, all my friends around me went crazy to wholesale PV to others, because after selling PV, they could not only make a profit, but also get the corresponding PV.&”; This is equivalent to getting two incomes from one PV wholesale. &”;The most important thing is that PV will never be out of stock, and there will never be an upper limit.&”;
&”;PV is the future profit, so wholesale PV at different levels is to distribute future profits to everyone in advance.&”; The five-level channel provider (pseudonym) explained to the reporter, &”;In fact, it is this model of future profit management that attracts a lot of funds.&”; The above is the relevant knowledge about what is the identification of defrauding property in the crime of organizing and leading pyramid schemes.