China: 从金字塔骗局到传销覧中美传销的认定对比与分析

Last Updated: 12 July 2019
Article by Vera Gao
Most Read Contributor in China, July 2019

传销起源于美国,于我国野蛮生长。

2019年3月14日,广州花生日记网络科技有限公司因涉嫌传销被广州市市场监督管理局合计罚没7,456万元,系迄今为止社交电商领域最大一笔行政罚单。

2019年5月25日,山东省滨州市沾化区人民法院对"悦花越有"特大网络传销案一审宣判,北京悦花越有电子有限公司在全国各地发展会员380余万人,其中骨干会员50余万人,涉案金额19亿元,主犯被判处有期徒刑七年,并处罚金2亿元,规模上创近年来传销刑事案件之最。

随着社会经济与技术的不断发展,新经济、新业态的不断涌现,传销行为形态万千。而我国为严格规范市场经济,只承认单层次直销,而将美国允许的多层次直销(Multi-levelMarketing)一刀切的归入违法传销行为之中。

本文旨在分析对比我国与美国对传销的认定,透过形态万千的传销行为表象,揭示传销的本质。

一、传销:多层次直销的变种

直销、传销对我国而言都是舶来品,最初都起源于美国。直销(DirectSelling)又分为单层次直销(Single-levelMarketing,如图一)及多层次直销(Multi-levelMarketing,如图二),二者都是以真实产品销售为基础,只是层级上存在差别。

1886年,大卫キ麦肯尼在美国创立"加州香氛"公司(即现在的雅芳公司),聘用女性作为兼职销售员,以直销的方式向她们所属的社区推销香水。产品不需经过传统的进出口商、批发商和零售商,而是直接由直销员卖到消费者手中,这被认为是单层次直销诞生的标志。而多层次直销模式则奠基于查キ狄维士和杰キ温安洛创造的"几何倍增学+直销"的销售模式[1],即后来的"安利模式",与前者不同,多层次直销人员除了获取销售商品的佣金外,还可以招募下线销售人员,并从下线销售人员的业绩中获得佣金。

图一:单层次直销结构图

图二:多层次直销结构图

在美国,传销被称为金字塔骗局(pyramid scheme),亦称具有非法报酬结构的多层次直销(an Multi-Level Marketing with an unlawful compensation structure),其系多层次直销的一种变种,它不以销售商品为目的,而纯粹以不断招募、发展下线而获利,形成商品空转的局面。

单层次直销、多层次直销及传销的主要区别如表一[2]所示:

表一:单层次直销、多层次直销及传销的区别要点

而我国,为防止以多层次直销的外貌掩盖传销的本质,目前只认可单层次、平行结构的直销:直销员统一为企业的直销员,不存在互相推荐的上下线关系。

二、中美传销认定的法律对比

经检索,笔者总结我国与美国对传销行为认定的依据及要点,详见下表:

由此可见,我国与美国对于传销的定性一致:传销非以产品/服务销售,而系以发展下线作为组织收入来源。但二者在认定细节把握上存在差异,主要体现在以下三个方面:

(一)实质重于形式

我国明确界定了"交纳入门费"、"团队计酬"、"拉人头"的违法表现形式,而美国的监管体系认为"交纳入门费"与"团队计酬"仅是性质中立的行为,对发展人员的数量与层级并无特别规定,更加注重对传销的实质认定:

1.无真实货物销售,纯粹是以发展下线为导向,从而形成货物空转局面[7];

2.支付对价以发展下线并从中获利,即从发展的下线非出于其个人消费目的而支付的费用中获利[8]。

(二)美国将"交纳入门费"与"拉人头"两要素结合认定

我国《禁止传销条例》第七条将"交纳入门费"牟取非法利益认定为传销行为。而美国,单纯要求参与者交纳一定的入门费以获得加入资格,或单纯以发展下线的数量作为计酬依据,都不构成非法传销,而被认定为性质中立的行为,若同时具有"拉人头"行为,即发展下线并从中获取非商品销售利益的,才构成传销行为。

(三)美国更注重对"团队计酬"的计酬依据而非计酬形式的考察

我国不认可多层次直销,将"组织者或者经营者通过发展人员,要求被发展人员发展其他人员加入,形成上下线关系,并以下线的销售业绩为依据计算和给付上线报酬,牟取非法利益的"均认定为传销行为。而美国允许合法的多层次直销,在认定非法传销行为时,并没有对人数、层级和计酬模式作出过多限制,更注重对团队计酬依据的考察,即是以参与者真实销售商品所产生的业绩为基础,还是以参与者为提升组织内等级而购买商品所产生的业绩为基础,以把握非法传销行为的实质。

三、结语

随着新兴经济的快速发展,销售模式日新月异,而我国传统的传销认定模式较为机械,过于注重对于传销行为表象的界定,如"拉人头"、"团队计酬"、"交纳入门费",存在将"正规军"打入"非法传销"之列的可能,希冀以此文引起思考,把握传销行为的实质,精准打击传销,构建良好经济生态。

文中注释

1. 网易看客:《全世界都搞传销》,https://mp.weixin.qq.com/s/LqcB95utixj-tY_mmvB_6g,最后访问日期 :2019年6月26日。

2. 参见曹文智, 梁彬, 徐国红:《论传销的刑法规制覧以司法实务为视角》,载《中国人民公安大学学报(社会科学版)》2010年第5期,第140页。

3. Multi-Level Marketing Laws in 50 States, http://mlmlegal.com/statutes.html,2019年6月26日最后访问。

4. 15 U .S.C. ァ45.

5. 17 C.F.R. ァ 240.10b-5.

6. 15U .S.C. ァ 77 e.

7. Webster v.Omnitrition Intern., Inc.,79 F.3d 776, 781 (9th Cir.1996).

8. Federal Trade Commission (FTC), In the Matter of Koscot Interplanetary, Inc., ET AL., 86F.T.C. 1106, 1975 WL 173318

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