Foreword: This case deals with how to distinguish between false advertising and fraud. Some young people sell health care products, which are approved by the state, and it is clearly stated that they cannot be used as a substitute for medicines. The packaging of health care products also states that there are medicines that cannot be replaced. But it was such a case that was collectively convicted of fraud.
False advertising is an act defined by law, and if it is constituted, there is only administrative punishment, not criminal punishment. The conduct of the defendants in this case is obviously false propaganda and not fraud, according to the definition of false publicity in the law. However, it was finally determined to be a fraud by the Yingze District Court, but after appeal, it was remanded for a new trial.
At the time of the incident, it was the outbreak of the Quan Jian Group, but Quan Jian's serious false propaganda behavior and social impact were so great that they were not defined as fraud, but were only defined as false advertising and pyramid schemes, and only bear criminal responsibility for this. However, the false propaganda behavior of these young men is defined as fraud. Taiyuan criminal lawyer.
Apologetics.
Honorable Presiding Judge and People's Assessors:
Accepting the entrustment of Huang Qiangshi and his close relatives, the lawyer served as his defender to appear in court to defend him, and hereby expresses the following defense opinions on the facts and legal issues of this case: Taiyuan criminal defense lawyer.
After a meticulous trial investigation, the basic facts of the case have been clarified, and there is basically no objection from all parties. This basic fact is that when the defendants sold the legal and qualified health care product sea buckthorn polypeptides, they made false or misleading commercial promotions about the performance, function, and user evaluation of the goods, so as to deceive and mislead consumers. In addition, in this process, there are "draggers" who organize false transactions, and also make false or misleading propaganda about the performance, function, and user evaluation of goods in this way, so as to deceive and mislead consumers. Taiyuan lawyer.
As alleged by the prosecutor, 22 defendants, including Guan Guidong and Huang Qiangshi, deceived consumers in the process, but the defender argued that this deception was not deception in the crime of fraud. If this fact is found to be a crime of fraud, it is obviously an unjust, false and wrongly decided case, and in the foreseeable future, even if the case is found to be a crime of fraud by the Yingze Court or even the Taiyuan City Intermediate People's Court, after the defendants appeal to the Supreme People's Court in the future, the judges of the Supreme Court will be happy to change the verdict of this ordinary case to not guilty, as a concrete embodiment of the work of investigating wrongful cases, administering justice for the people, and impartial justice.
This case involved 22 defendants, and although they pleaded guilty under pressure from the prosecutor and the court during the trial, they will inevitably appeal after the first-instance verdict is handed down, and if the appeal fails, they will inevitably petition and appeal. As mentioned above, so many defendants, including many elderly people, have been wronged in such an unjustified manner, and considering the bad consequences and adverse effects of such miscarriage of justice and wrongful convictions, the Supreme People's Court is happy to change the verdict.
Adjudicators who will participate in cases in the future will inevitably suffer the adverse consequences brought about by the investigation of wrongful cases. Taiyuan defense lawyer.
1. The current law clearly defines the conduct of defendants such as Guan Guidong and Huang Qiangshi as acts of false propaganda, and only provides for administrative punishment for acts of false propaganda, but does not provide for criminal punishments.
1) The conduct involved in this case is an act of false publicity, and the act of false publicity should only be subject to administrative punishment.
Article 8 of the Anti-Unfair Competition Law of the People's Republic of China stipulates that: "Business operators shall not make false or misleading commercial promotions about the performance, function, quality, sales status, user evaluation, honors, etc., of their goods, so as to deceive or mislead consumers." Business operators must not help other business operators conduct false or misleading commercial publicity through methods such as organizing false transactions. "Taiyuan criminal defense lawyer.
Article 20 of the "Protection of Consumer Rights and Interests of the People's Republic of China" also stipulates that business operators shall provide consumers with information on the quality, performance, use, and validity period of goods or services, and shall not make false or misleading publicity.
Moreover, the above two laws provide for administrative penalties for false propaganda in Articles 20 and 45 respectively.
The above two laws clearly define the act of "false advertising" as "false advertising" by making false and exaggerated claims about the quality, performance, and function of the goods to consumers when selling qualified goods.
It can be seen that the alleged acts of Guan Guidong and Huang Qiangshi in this case have been clearly defined as "false publicity" by the above legal provisions, and specific administrative penalties have been prescribed for false propaganda.
2) The Criminal Law does not criminalize the act of false propaganda, nor does it require criminal punishment for the act of false propaganda.
Now that the law has defined the act as false advertising, it has provided for administrative sanctions. If the criminal law intends to criminally punish the act, it must be clearly stipulated in the criminal law.
For example, the act of false advertising. With regard to false advertising, Article 28 of the Anti-Unfair Competition Law, Article 45 of the Consumer Rights Protection Law, and Article 28 of the Advertising Law all define what constitutes false advertising and clarify the administrative punishment measures.
Because false advertising is harmful to society, the legislator believes that false advertising should be criminally punished. Therefore, Article 222 of the Criminal Law clearly stipulates the crime of false advertising.
To sum up, China's laws clearly stipulate that the suspected acts of Guan Guidong and Huang Qiangshi are false propaganda acts, and only provide for administrative punishments, but not criminal punishments. Therefore, according to Article 3 of the Criminal Law: "Where the law expressly stipulates that it is a criminal act, it shall be convicted and punished in accordance with the law; Where the law does not expressly provide for criminal conduct, it must not be convicted and sentenced. It can be seen that the acts of Guan Guidong, Huang Qiangshi, and others do not constitute a crime.
2. From the perspective of the crime of fraud, it can be seen that the acts of Guan Guidong, Huang Qiangshi, and others do not constitute the crime of fraud.
1) The purchaser will not have a wrong understanding of the product in this case.
According to the provisions of the Criminal Law, a complete act constituting the crime of fraud must have the following structure: the perpetrator commits a deceptive act - the other party has a misunderstanding - the other party disposes of property based on the misunderstanding - the perpetrator or a third party obtains property - the victim suffers property damage (Zhang Mingkai, Criminal Law. p. 1000).
In this case, because the sea buckthorn polypeptides sold by Guan Guidong and Huang Qiangshi were regular health care products with national approval numbers and patent certificates, the packaging and labeling of the product clearly showed this. Therefore, according to the truthful identification of the product, it can be seen that although the salesperson has made a false statement about the function and performance of the product, the buyer will not have a misunderstanding because the label of the product has been truthfully labeled.
This is also the reason why China's law does not stipulate that the act of false advertising in the sale of qualified goods is a crime, but only considers it an administrative violation.
2) The defendants did not have the act or purpose of unlawful possession.
According to the investigation of the trial, as long as the purchaser proposes to return the health care products sold by the defendants, the company and the defendants will return them. The return rate reached 20%. There is no manifestation of the intention of illegal possession such as refusing to return the goods and going to the empty building.
From the selling price, it can be seen that the company involved in the case and the defendants sold the products involved in the case are completely lower than the national market price, and the sales price is determined on the basis of the national uniform sales price displayed on the goods, and is about 30% lower. This is at odds with the common characteristics of abnormally high pricing scams.
Moreover, the vast majority of buyers did not think that they had been deceived, and they did not go to the public security organs to report the case, but reported the case at the request and notice of the public security organ according to the evidence presented by the public prosecutor. This does not rule out the possibility that the case-handling department may be overjoyed and convicted in vain.
3. In practice, the highest law enforcement agency of the state does not treat false propaganda as a crime.
For this case, there is an almost identical case (Quan Jian case) that has just happened for reference:
The following is the recent incident in the society about the development of natural medicine technology in the health care product sales industry
On December 25, 2018, an article was published on WeChat *** Lilac Doctor" - "Tens of Billions of Health Care Products Empire Quan Jian, and the Chinese Family in Its Shadow". The article is sharply worded, and every word directly refers to the "big name" in the health care products industry - Quanjian Natural Medicine Group (hereinafter referred to as "Quanjian"). Suddenly, Quan Jian was pushed to the forefront, and disputes arose.
The article pointed out that Quan Jian is not as advertised to the outside world, and its health care products have miraculous effects such as "anti-cancer", and its essence is a "criminal health care product empire". In 2015, a 4-year-old girl Zhou Yang from Inner Mongolia died in December of the same year due to the delay of taking Quanjian's "anti-cancer" products, which caused her condition to deteriorate. In this article, the most exciting thing for readers is that while the girl is enduring the pain and torture of the girl, Quan Jian uses Xiao Zhouyang's ** to start false propaganda in the major**, falsely claiming that he has regained his life under the magic medicine of Quan Jian. Shockingly, Zhou Yang is just one of the many consumers who have been violated by Quan Jian but have failed to defend their rights. On the one hand, the vast number of users who unfortunately died of illness and had no way to seek help, and on the other hand, the Quanjian Group, which has a rapid economic growth and a "brilliant" future, has an impact on readers that is self-evident.
Sky-high insoles are positive bases, negative ion sanitary napkins, and ...... of franchised fire therapy shops that are open all over the streets and alleysThe development history of Quanjian seems to be an endless and brilliant history of the rise of health care products, but it is actually a history of bloody aggression based on the lives and health of countless consumers.
Shu Yuhui, the head of Quan Jian, portrayed himself as a folk doctor who "hung the pot to help the world", and Quan Jian's success was also due to his collection of more than 600 "secret recipes" of traditional Chinese medicine. Quanjian's gimmick seems incredible, but it has miraculously developed: according to the estimation of the direct selling industry magazine "Knowledge Economy: China Direct Selling", Quanjian's sales performance from 2013 to 2017 were: 5 billion yuan, 13.5 billion yuan, 19 billion yuan, 19.2 billion yuan, and 17.6 billion yuan respectively. Quan Jian, who seems to be resplendent in gold, but in fact has nothing inside, its growth rate is just as jaw-dropping.
On December 25, 2018, the online name "Doctor Lilac" released an article "Tens of Billions of Health Care Empire Quanjian, and the Chinese Family in Its Shadow", questioning Quanjian's fire therapy, insoles, herbal clear liquid and other products. After the article was published, it attracted wide attention from the whole society.
On December 27, the Tianjin Municipal Party Committee and the Municipal ** instructed the Municipal Market and Management Commission, the Municipal Health Commission, Wuqing District and other relevant departments to set up an investigation team to investigate and verify many issues of concern to the online name.
On December 28, in accordance with Article 8 of the Anti-Unfair Competition Law of the People's Republic of China, the Market Supervision Bureau of Wuqing District, Tianjin Municipality has filed a case for investigation into its suspected illegal acts of false advertising.
On January 1, 2019, the Tianjin Municipal Public Security Bureau filed a case for investigation on Quanjian Natural Medicine Technology Development on suspicion of organizing and leading pyramid marketing activities and false advertising.
On January 13, 2019, the People's Procuratorate of Wuqing District, Tianjin Municipality approved the arrest of 16 criminal suspects, including Quan Jian Natural Medicine Science and Technology Development *** Shu Moumou (the actual controller of the company), on suspicion of organizing and leading pyramid marketing activities.
To sum up, the sales of health care products of Quanjian Company, which has a very large impact, reached nearly 20 billion, and although there was a serious incident of patient death, it was not investigated and arrested for fraud. Obviously, this proves that the highest law enforcement agency of the country does not consider false propaganda to be a fraud. Even in the unified law enforcement activities triggered by the Quanjian incident to rectify the health care product market nationwide, the false advertising in the process of selling health care products has not been extended to the crime of fraud.
It can be seen from this that the criminalization of this case as a crime of fraud is contrary to the understanding of the highest law enforcement agency, and will certainly be corrected by the highest law enforcement agency.
Moreover, it can be seen that the designation of false propaganda as fraud is against the trend of the rule of law, and this kind of behavior of great joy, violation of the rule of law, and violation of human rights has been abandoned by the highest law enforcement agency and has been submerged in the tide of the process of the rule of law.
Here, the defender hopes that the Yingze District Court can show the highest level of law enforcement in Shanxi Province, not knowing that the law is illegal, not going against the rule of law, and not knowing that the wrong case will be committed, and finally smear Shanxi, discredit the court, and create a large-scale and large-scale wrong case.
In order to avoid the adverse impact of this case, under such circumstances, the defender strongly requested the court to solicit opinions from a wide range of experts, scholars, higher courts, and the Supreme People's Court, so as to prevent irreparable serious mistakes.
Please consider the above carefully.
Defender: Liu Yunfei.
January 2019.
Postscript: In this case, the Yingze District Court should be the court with the highest level of rule of law in Shanxi Province. However, this case did not receive a high level of rule of law treatment. During the trial, the prosecutor, with the support of the presiding judge, made the trial extremely tense, and even I, as the defender, felt breathless. And the prosecutor used a threatening tone during the interrogation and compared himself to a judge, saying that if he didn't do anything, the defendant would be punished. Not to mention the defendant, even a lawyer can find it difficult to fully defend himself in such a situation. And this way of asking questions is not allowed by law. I also questioned it in court.
But to my regret, there are more than a dozen defendants in this case, and many of them have hired lawyers, but these lawyers are the lawyers I have ever met that disappointed me the most, not that I am dissatisfied with my peers, because I often meet defenders who I admire when there are many defenders. But this time it was very disappointing to me. When you meet a lawyer that you admire and appreciate, you don't feel like you're alone, you feel like you'll have helpers. This will be a little more powerful in the defense.
But this is not the case in this case, and the other lawyers, many of whom are still young and vigorous, unanimously chose to plead guilty. If the client pleads guilty and the lawyer pleads not guilty, it is also a defense strategy. But the problem is that the client pleads guilty, and the lawyer also pleads guilty. But when it comes to the problem, this is obviously a case of identifying the administrative offense of false propaganda as a criminal act.
It is obviously disappointing that young lawyers have no legal sensitivity and no sense of defense. When you think a lawyer is good, you will also feel very sour as a lawyer. But when you encounter something, even if it is not your business but the business of the parties, and you only want to complete the obligation of defense, then you still hope to meet someone who can work together with you, someone with a higher level than you, because this is the correct way to solve the matter, so that your wish can be realized. Find a Taiyuan lawyer
It can also be found here that the power to decide on criminal cases seems to be in the hands of the police. When the police determine that it is a crime, the procuratorate and the court seem reluctant to make changes. Of course, in terms of legal settings and system settings, the procuratorate supervises the public security, and the court supervises the procuratorate. But the reality is that the decisions of the police have more authority than the procuratorate and the courts. When the public security files a case, the procuratorate and the court try to maintain it, and only in a few cases does it change. The normal situation should be that the procuratorate and the courts should strictly supervise the conduct of the public security, so as to ensure that the country is governed according to law.
For example, in this case, if the supervisory duties can be performed correctly, the procuratorate should explain to the public security when approving the arrest that this is a case of false propaganda and cannot be determined as fraud.