China: 法治兴邦 | 刑法修正无止境:以组织、领导传销活动罪的创制为例

Last Updated: 3 December 2019
Article by King & Capital Law Firm

 刑法是法治初创期首要之法,它关系到公民的安全保障和社会的基本秩序维系。1978年我国法制重建的第一项任务便是颁布刑法典。刑法作为其他部门法的保障之法,涉及到社会经济生活的方方面面,如不能随时势而修正,则相反会制造诸多"人间悲剧"。


  尤其是改革开放政策的大幕拉开,市场经济日益蓬勃,对于经济犯罪的调整和应变能力绝非1979年刑法典所能承载,社会之大变革仍然需要刑法的及时回应。


  中国特色社会主义法治向来以唯物辩证法为基准,在坚守罪刑法定原则的同时亦需与时俱进,于是系列刑法修正案不断涌现,如今已至10部。以下谨以本年度"流行"的组织、领导传销活动罪加以窥探。


  长久以来,我国法律对于传销活动的定性有过多轮斟酌跌宕的评价。在改革开放初期,作为一种新潮的商业模式,传销登陆中国后一直被放行。然而,由于配套约束机制不成熟,哄抬价格、偷税漏税、假冒伪劣、走私贩私现象时有发生。


  于是,1994年8月11日,国家工商管理总局发布了《关于制止多层次传销活动违法行为的通知》,进行了一系列负面清单式的规制。然而,1997年1月10日,国家工商总局又发布了《传销管理办法》,承认了传销的合法地位。1998年4月21日,国务院又颁布了《关于禁止传销经营活动的通知》,对整个传销行业全面禁止整顿。


  2001年4月10日,最高法院公布的《关于情节严重的传销或者变相传销行为如何定性问题的批复》指出:"对于1998年4月18日国务院《关于禁止传销经营活动的通知》发布以后,仍然从事传销或者变相传销活动,扰乱市场秩序,情节严重的,应当依照刑法第二百二十五条第(四)项的规定,以非法经营罪定罪处罚"。2005年几乎同一时间出台的《禁止传销条例》和《直销管理条例》在行政法规层面将妥协的结果——传销/直销二分模式予以确认。


  2009年2月28日,全国人大常委会通过的刑法修正案(七)第四条增设了组织领导传销活动罪,将之从非法经营罪的兜底条款中予以剥离。


  由此可见,传销罪仅仅将《禁止传销条例》中的"拉人头""收取入门费"作为犯罪行为,而将"团队计酬"排除在外。其内在逻辑是前两者在国外即为"金字塔计划"(pyramid scheme),本质是骗取他人财物。而"团队计酬"才是真正的经营行为。传销罪侵害的法益具有复杂性,首先是他人的财产权,其次才是市场经济秩序。


  刑法修正案(七)将传销罪加以类型化并单独成罪,实现了与《禁止传销条例》的并进,实现了罪名与行为模式的统一,更加有利于打击该类犯罪。然而,在对刑法典的辨证同时也留下了诸多迷思。第一,既然传销罪本质是"骗",罪名就不应当限于经营活动,也许应当效仿"合同诈骗罪",更名为"传销诈骗罪"。第二,既然团队计酬没有被纳入到传销罪中,并且商业模式具有相当的合理性。笔者认为应当予以非罪化。第三,现代意义上的诸多传销行为已经不以经营为主要形态,而是带有明显的金融性质。有些行为已经超出了传销罪所设定的经营、服务的市场秩序范畴,系典型的金融诈骗行为。现有的传销罪罪名无法予以涵盖,因此传销罪的概念亟须更新。

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions