Sixth the counsel for the defence lawyer in Beijing, Zhao Enfeng, Shandong lawyer Zhang Qiqiang (not pictured)

Second the accused person Beijing lawyer Li Lingyan was blocked in court over the railing. Don't let the door

 

 

The Pacific direct purchase of electronic commerce in court today charged with Marketing Association

Shandong Liaocheng Dongchangfu District Court illegal obstruct lawyers

 

    [Beijing Heng network 21 Liaocheng news] Shandong Liaocheng Dongchangfu court this morning has serious violations of the right to counsel events. The third session of four across the country in the new principal defendant lawyer was stopped outside the courthouse, unable to appear in court. A vice president Li and court presiding judge with more than 20 bailiffs defends in the iron gate door, specifically restrict four lawyers point and the audience approach. And other local lawyer one one was released. The four lawyers presented the certificate of lawyer, to the letter, a power of attorney, the court rejected by.

    The court reasoned, the lawyer did not three days in advance to submit to the letter. Without submitting to the letter, only to the court to produce procedures can only be found. By a collegial bench. Dongchangfu court prior to the door to intercept the lawyer, it revealed the truth was planned in advance, advance guard, ready to. Special to the door to thwart a lawyer in court.

     This is a case of Jiangxi Nanchang Pacific direct purchase controlled MLM "Chinese electronic commerce first case", relates to the online shoppers pay deposit 6720000, 6000000000 channel 120000, of which more than 600 people had been arrested the wanted. If convicted of the same nature, 120000 people can be charged with a crime, confiscate the deposit.

    It has its source in Jiangxi nanchang. Nanchang public security, Jiangxi Province Public Security Bureau and procuratorate, court, politics and Law Committee 2010 collective research that do not constitute a crime, agreed to the Ministry of Public Security Bureau reported by the public security bureau to the wonderful, Nanchang Life Inc formally written by does not constitute a crime case withdrawal notice. Shandong Liaocheng Shenxian Public Security Bureau later first arrests, the Nanchang bill Liu Baohua, childhood for bail to more than 1100 after the release, has not returned to settle a matter by leaving it unsettled, bail, reflects the Shandong public interest law enforcement phenomenon. Subsequently, the Liaocheng Public Security Bureau of Dongchangfu, and caught the 6 people such as Liu Shugang. And to Nanchang coerce deduct money "". In Nanchang public security in the absence of any new facts and evidence of changes in circumstances, for the protection of local interests are once again put on record, frozen wonderful Life Inc 11 million in online shopping business customers margin. Grasp light company 10 executives. Subsequently, Jilin plump, Guangdong Shenzhen has begun on the arrests, the various provinces and cities nationwide caught caught more than 600 people.

   Before the Spring Festival at the end of 12, Nanchang intermediate court Tang Qingnan and more than 10 people "organizational leadership pyramid selling case", Chen Youxi, Cen Yan, Zhao Enfeng, Li lawyers defended a rigorous for the defendant innocent. Court was decided in December 28th, it attaches great importance to legal advice, until now, nearly five months not condemned, is still in the internal study. Subsequently, plump, Shenzhen, Heze, stop, suspend the trial, qualitative wait for Nanchang case.

     The case of Liaocheng from 2011 July arrest, procuratorate carefully check, check back two times, to extend the three, has been reluctant to prosecute. Drag. April 11, 2012 barely prosecution. After court, the three court decision, also is not willing to, already forty days a year not found, more than six months old criminal law a trial period of three months and the new criminal procedure law period. Third today's hearing is to cover up the illegal procedure, procuratorate re produced "indictment". But no case, no new facts and evidence, and not as a suit again, still can not interrupt the limitation. But no one dares to point out local lawyer.

   Each of the defendants in the two defendants, all maintained her innocence. Under great pressure to local counsel, can't really argue, some lawyers to plead guilty to the defendant. Six the defendant's family with three family members decided to increase hiring the foreign lawyers, pleaded not guilty to the defendant. The notification time, lawyers to Shandong Liaocheng inconvenience, because it can only see the defendant is hearing. Due to have a lawyer, read the notes and the case study has been done, does not affect the court. But the court that strengthen the lawyers, there are other lawyers in the country to Liaocheng to participate in the defense, came up with this way hinder lawyers.

   Today in the court court case this huge, according to the report in the families, eight timber raft Gallery, just sit three row after family members and a total of 40 staff, the first five rows are empty. National concern the case more than 40 channels, by more than 30 judges a block in the iron bar, can not enter the court. This caused the extreme dissatisfaction with the audience. We were discouraged, and with Lee vice president negotiations after leaving court. Last night all night out "defense" referred to the Lee vice president. And please Feng lawyers will Nanchang case "defense" and Beijing more than twenty experts "opinions" submitted to the court for reference.

   We're not dead on lawyers. Therefore, not with the court to fight, make matters worse. But Shandong Liaocheng Dongchangfu court "fire and civil defence lawyer", will people as the enemy's folly, is fully exposed. This court to let him hear the case objectively is difficult. The morning session lasted until one thirty in the afternoon, the original please local lawyers carefully defended the defendants, two lawyers for the guilty plea for the defendant. But let us judge in the case before sentence, Nanchang, Liaocheng court would not hastily sentenced. The defense opinion we can wait until the second intermediate people's court to state. They can't stop the lawyer sound.

 

                    

The first defendant Liu Shugang defender Chen Youxi lawyers were blocked outside the court does not let the door

Chen Youxi lawyers yesterday 20 from Hangzhou to fly to Ji'nan and then to Liaocheng to see Liu Shugang, signed orders.

Was up all night to write more than 12000 words defense, 21 to the court entrusted to appear in court documents, was shut sb

 

"Criminal Procedure Law" article forty-third  

During the trial, the defendant may refuse to have his defender continue to defend him, may also entrust another defender defense.

"The Supreme People's Court on the application of" the people's Republic of China Criminal Procedure Law > explanation "article forty-sixth

During the trial, counsel to accept his entrusted, shall be in the Commission within three days from the date of entrustment formalities, will be submitted to the people's court.

The state laws and regulations, the defendant in the trial process may entrust his defense to another defender, no deadline constraints. The Supreme Court ruled that the lawyer entrusted within three days after the delivery procedures to the court, was commissioned from the date of. Not hearing any specified date back to the court. The court submission procedures without any provisions. The parties may be replaced or more lawyers, court shall guarantee the lawyer marking time. If the lawyer papers, the court shall postpone the hearing. In this case, the original law continues to increase, the new law does not require the extension, Security Court plan is not affected, do not accept the new lawyer law.

 

 

Came from all over the country to attend the Pacific direct purchase channels were blocked outside the court

 

 

Dongchangfu District Court theme education practice leading group

Www.padcjs.cn   2011-4-1 Source: peace Dongchang construction network Click: 264 Dongchangfu District People's court Carry out the "carry forward the tradition, faith, law enforcement for people" theme educational activities The leading group      According to the provincial, city, District Committee of political science and law, Dongchangfu district court to set up a "carry forward the tradition, faith, law enforcement for people" theme of education practice leading group.      GroupGeneral: Hu Zhaoxun;      Vice group leader: Zhang Zhenhua;      IntoClerk: Li Ting, Lv Zhaohai, Yu Bo, Zhao Yaotong, Shi Lanxiang, Hou Xiaozhen, Mu Chunfu, Li Hongwei, Liu Wei.

To be on one's guard for the bailiff is civilization in the people, eight timber raft Gallery, only after three timber raft sat family, the first five timber raft all empty.

Dozens of national audit to request channel completely sit down. The court deliberately creating obstacles, conflict, the people when the enemy, the purpose is to deter defendant pleaded guilty in the wrong.

The indictment charged in April 11, 2012. In accordance with the provisions of the criminal procedure law trial three months must sentence. Today is May 21, 2013 has up to 1 years 40 days to the Liaocheng Dongchangfu court, serious illegal program. But without a lawyer present local. Today the third session's Procuratorate to re create the indictment, want to re charged to cover up the aging problem of illegal. But there is a fatal wound is no withdrawal decision, not to serve the defendant and lawyer, how to suit again? His illegal seven months can be tolerated, the lawyer is not entrusted to three days in advance is not allowed, this is really the socialist government!

 

For all Liu Shugang's prosecution facts in this section, there is no other. This case from July 5, 2011, Liaocheng public security people, until now has been held for ten months in a year.

To re create the indictment, just changed two data. Procuratorate check back two, extended three times, has run out of all the time. Then check back has no basis for the court.

 

This is a I rushed to Liaocheng to meet with Liu Shugang after yesterday, Home Inn to pull an all nighter out defense, because I have the Nanchang Tang Qingnan case defense case understanding, a night he wrote 12700 words.

Li Cenyan lawyer assistant Guan Xin help me morning go to print shop out. Also added a fine cover.

But there is no chance at court defense, unable to make a collegial panel. I'm with the Dongchangfu District Court vice president Li Ting about it, he finally accepted the plea.

I addressed the nation defense, have a look the procuratorial V. This Liaocheng police caught, six have no sin.

 

 

Shandong Liaocheng Dongchangfu court

Liu Shugang was accused of pyramid selling case of first instance plea

 

Beijing Heng Law Group Chen Youxi lawyer

 

 

The collegial panel judges:

  Beijing Heng Law Group commissioned accused Liu Shugang, and Feng Tianhong Shandong Pu new lawyer, served as Liu Shugang's defenders. I am the entire Pacific direct purchase charged with marketing the first defendant in the case of Nanchang Tang Qingnan defender, have a good understanding of the case. The case has been held two times, this is the third session, I was employed for defense. Accept the Commission, I went through all the materials, met with the defendant, attended today complementary part of the court investigation, had a further understanding of the facts of the case, the evidence and relevant legal problems. I completely agree with the defending opinions Feng lawyers have published and submitted to the court. Now I again from the basic facts and legal issues of mastering the opinion to the court. After court I will also filed in court in Beijing more than twenty criminal jurists, e-commerce experts, civil law company law experts' views of more than 3 words, it is to the court, the objective judgment. Please the court, to be the reference.

   The defenders by reviewing "indictment" and evidence, agreed to Feng lawyer Liu Shugang does not constitute a crime of opinion base. Liu Shugang, the organization crime cannot be established. The reasons are as follows.

A, The judgment basis in fact do not have

   This is a case of six defendants are Jiangxi Nanchang wonderful company channels. Properties of the case will be based on qualitative Nanchang case. All on-line direct purchase households directly with the Nanchang company relationship. All deposit into Nanchang company, these six didn't handle a. All the behavior in Nanchang company name. All consumption returns brought from Nanchang company. The case of qualitative cannot independently. Is a necessary joint action. Now separated jurisdiction, must also be the same qualitative.

   Occurred in Jiangxi Nanchang Pacific Electronic Commerce has accused of pyramid selling case, Nanchang City Intermediate Court after December 18, 2012 to 28 off six days of trial, the judge adjourned. We make a plea of not guilty. Time has passed nearly five months. Nanchang intermediate court in the case of internal instructions carefully, and research, has been sentenced to not down.

   Subsequently, Jilin, Guangdong Shenzhen plump for two trial. Lawyer pleaded not guilty, the court is cautious not judgment, are waiting for the case of qualitative nanchang.

   In this case, and the defendant is business amount, illegal profit on the basis of a serious shortage of. The lack of relevant certificate issued by bank remittance voucher or the lack of the marketing system, all running account, financial account, should have the evidence, if not the above proof, its amount should not be recognized. The evidences provided by the prosecutorial organ be reduced to fragments, unable to form a complete chain of evidence to prove the allegations of business value.

 

 

Two, This decision does not have the basic evidence

First, marketing the case of qualitative no evidence and authoritative interpretation.   

   Electronic commerce marketing, the Supreme Court did not explain. The "Regulations on Prohibition of pyramid selling" nor on the electronic commerce as a pyramid selling any explanation. In the judicial practice of the judicial organs, organs is discussed that innocent. In the case of Jiangxi province has been the judicial organs of collective research case. By the power of chaos disturbance and filing.

      Nanchang public security organs as early as 2010 May investigation, after careful study, the provincial public security, prosecution, courts in the collective research, and then submitted to the Law Committee, the Ministry of Public Security Bureau report, ensure that the BMC mode does not belong to the pyramid selling, the public security organ to make a formal decision guilty case, and in November 11th sent to the company. Subsequently, the Commerce Department of Jiangxi Province in 12 monthly Department of Commerce recommend great company is the national e-commerce demonstration enterprise. The training center of the Ministry of national insurance e-commerce training base for the company. In the public security monitoring business after more than a year, and, instead of filing arrests prosecution.

   In 2011 September, Professor Zhao Bingzhi; Professor Chen Xingliang; Professor Zhang Mingkai; Professor Liu Renwen; Professor Yang Lixin argued, to produce the opinions of the experts, to support this new business model, that do not constitute a pyramid selling crime.

   In 2012 April, the investigation organ suddenly changed the original qualitative, arrested the eight people, seized the company nearly 2000000000 of assets. Regardless of right and wrong, these phenomenon at least, this is an even and the internal organs, including the public security organs are unable to grasp the basic case, that innocence. BMC qualitative not business, judicial expertise. Many investigators don't know what is called the electronic commerce, do not know what number of e-commerce marketing, there is no precedent for basic characteristics.

   In 2013 February, Beijing lawyer invited more than 20 criminal law, civil law, commercial law, e-commerce experts once again on the Pacific case, experts agree Qun: as a new business model, legal relationship and legal nature of BMC mode involves complicated, there are different understandings of legal relations and legal nature of social parties in the business model involves, this is normal. No properties on the BMC business mode in the relevant departments defined circumstances, the administrative law enforcement organs and judicial organs should not be on the business model in accordance with the pyramid schemes to treat.

Second, identification of the case description is not valid evidence

   First of all, the description is not evidence. Basic lack of objectivity, comprehensive, scientific, authenticity, relevance requirements. Alone cannot be used as the basis for judgment.

   Secondly, the identification mechanism to generate this abstract is deliberately resort to deceit, in Nanchang has been our court interrogation asked Its loopholes appeared one after another., cannot be established. We have applied to the court for re examination, the court five months has been in the study can not be based on the identification of judgment. The most important is false, the profit of about 30000000, adjusted for the loss of about 1100000000. The police seized the margin account cash, there are 11 billion. Direct proof for identification center by the police guilty identification requirements, deliberately resort to deceit.

   Nanchang six days trial, lawyers for the expert witness to explain the situation, the main expert says on the court, did not participate in the audit. Audit assistant says not clear is not what is wrong reconciliations. Conclusion the reason cannot explain the loss. We are police seized nearly 1200000000 in cash, the Shenzhen real estate nearly 600000000, non attachment flow account trading margin 4 hundred million, the company no any losses. "Audit report" in accordance with public opinion, fabrications, will be a profitable company loss 11 billion company audit. Financial common mistakes. That margin is not received by the company govern the use of. The security indicator appraising audit, also contrary to the common sense to make such identification. To deduct margin part, results that companies have about 1000000000 losses. The company's margin in the enterprise financial processing, belonging to the temporary collection and payment, can be incorporated into the enterprise capital. This same property companies charge customers pre-sale 1629, to the bank to deposit loan nature is the same.

Third, according to the "report" has been taken to apply for re identification

   For this case the collegial panel to understand, I will Nanchang intermediate court questioned part of my report to the two agencies reporting to this. We have applied to the court for re examination, the court did not five months is not found:

   Copies of judicial authentication opinions of the case, is the need to focus on the can lead directly to crime evidence. We think, the identification is not real, objective, comprehensive, not science, can not reflect the real situation of the case, identification of illegal procedure, can not be used as evidence. Details are as follows.

(1The report does not have the authenticity of identification).

   It must be pointed out that the judicial accounting identification in the case, is not the first time the wonderful company's financial books do the judicial identification. Nanchang City Public Security Bureau had earlier on the same facts, made several identification, identification of the conclusions are profitable, health, business and the innocent, suddenly felt guilty. Identification should be made for the same facts that the two diametrically opposite conclusion, without any change in the financial data according to the. So the conclusion with the data does not have no relevance, authenticity.

   Identified, but different. The public security organ cases Nanchang revoked in 2010, is the audit identified. The time that innocence. The previous identification of the same facts Nanchang Municipal Public Security Bureau has done is based on the same financial books. The guilty, whether the public security organs, or the appraisal organ, cannot make out a good case. Is completely under the leadership needs, to make the audit conclusion.

 (2The report does not have the objectivity) identification.

  In this case the appraiser cannot keep the independent audit, by the public security presumption of guilty intent command, a profit of 1 million companies, through error account reconciliations, identified as a loss of 1300000000.

  Identification should be made for the same facts that the two diametrically opposite conclusion, without any change in the financial data according to the. So the conclusion with the data does not have no relevance, authenticity, identification mechanism is affected, organ First impressions are strongest case guilty guide, to cater to the tendentious conclusion. Being written directly into the indictment as the allegations are based on. This is the expert opinion wrong most outrageous.

   This error is how come? Is the business margin understanding, appeared to violate the basic financial knowledge transfer accounts be hardly worthy of belief.

   The company received a total of 3700000000 customer margin account, the original subject to temporary receipts payments, this is very correct. This margin, the public security organ for understanding is not used. After our cross examination, the prosecutor has corrected this error, the court said the margin can be used. The deposit is expected consumption, guarantee, such as pay 7000 yuan to buy the 1000PV, is to ensure that their consumption will reach 1000PV integral, a to 100PV, you can return the 700 yuan, until the full refund. Just to the company, this is equivalent to borrowing money flow, do not enjoy the ultimate ownership, is to also, but enjoy the temporary possession of the right to use. This Mobile Corporation mobile phone package, to pay 5000 yuan to send mobile phone, and then ensure the use of mobile network, the monthly telephone charges consumption, a year later, the money to pay off all the way to offset charges. Mobile Corporation first received the 5000 yuan, can certainly be used. There are such as golf membership card, after the first purchase of real estate companies pre-sale housing consumption; margin; gym prior purchase discount consumption membership card, all can be received margin that sell card money for use. To provide Follow-Up Services constantly. The PV integral is the same, to pay the deposit, then according to achieve the value of consumption, according to the different ratio of return, until the return of all. The first close the margin, of course can be used by the wonderful company. The success of BMC's model, the commercial profit basically allowing more profits to the consumers, while the use of the advantage of scale deposit the deposits of clients, generate additional benefits, achieve win-win. If not using margin, according to the company is not operational.

   The audit report, is listening to the public security organs "opinion security can not use", are subjects of adjusting errors, so that the huge losses to the public security. [2012]701 "identification" third page report said: "the recruitment of integrity channel business business does not produce business income," "rebate spending of 416000000, the company will be included in other payables (debit), after identification, the center of the adjustment will be included in the management cost". The fifth page said, "will be credited to the account of the rebate money has been paid 1360000000, adjustment in management fees", "after the adjustment, the main business income of 1125000000, main business cost 1000000000; business and management costs 1400000000, adjusted the actual loss of 1370000000." 1300000000 losses and by the public security, procuratorial written into the indictment. One of the 30 employees of the company management fees as high as 1300000000, the Arabian Nights is how come?

   Is the income margin temporary receipts, to pay no heed, can not be used, "does not produce business income", then returning margin as rebate, said to be the "management expenses". Such a loss of 1300000000 story was the identification center made out. In fact, the margin account receivable and payable temporary collection and payment account is correct. Included in other payables, rebate return deposit, reduced from the handle, can reflect the balance sheet of the company. The company not only loss, instead has a profit of 1 million. Until public security case, seized cash amounts to 1100000000, e-commerce retention 5 million settlement accounts, the company no loss. The identification of a direct violation of the accounting standards in the "independent, objective, fair" identification requirements.

(3) appraisal report does not have integrity, interpret out of context.

   The defender was found in the marking process, annual accounting identification of missing data in this case report, 2011 2012. Identification of page first express identification data and incomplete data. "Unable to confirm the 2007 to 2010 operating results" ("supplementary identification shows" second pages). "Due to the continuous update, data coverage was unable to confirm the store order data, unable to confirm the status of assets and operating results," but in the appraisal conclusion and no reservations, by the public security organs of the. A direct violation of the "identification of true, complete, full audit principles".

(4) appraisal report does not have the scientific nature of professional.Identification is not scientific, the basic concept is not clear.

   The public security organ chose not to understand the audit personnel identification of e-commerce and direct financial characteristics, operating properly. One is the nature of the "margin", do not have the basic knowledge of audit. Two is not familiar with the PV rebate integral business model. Three is a wonderful company business mode, change will cause the company every day of current assets and current liabilities of great, but also the early large investment to establish transaction commitment, every real consumption to get the discount interest, late profit. The evaluation report is in a normal enterprise audit per year to make. The defender believes that, in the condition of the financial appraisal of such liquidity change huge balance of payments, should at least monthly to measure.

   "Explain" supplementary appraisal of the last page says: "should pay the rebate 220000000, wherein the consumer rebate 7380000, extension 216000000 rebate rebate, extension 96.7%". This conclusion is also the public security, procuratorial organs, as the allegations are based on. To prove that the company is on the margin to the rebate, so is the marketing company. In fact, the company has no "concept promotion rebate", only the consumer rebate. To achieve consumption integral, the return of deposits, while enjoying the PV consumer rebate. This rebate, is the customer has reached the consumer 1000PV, the return of 7000 yuan. Consumer clusters, channel operators attract others consumption or margin to join, funds to the company, the channel itself had earlier promised consumption margin can take back, such as 70000 of the purchase of 10000 PV, with other people with whom he consumption, or are willing to pay a deposit, to join the people can back to their corresponding margin. This is not taking other people's money, but the money back to its original. Not "promotion rebate".

(5Beyond the scope) identification of judicial accounting identification.

   According to the authentication of the appraisal conclusion evidence rules must be facts rather than legal issues. Identification of the conclusions to be answered is the identification of judicial accounting can answer the question, but not the nature of the cases and other major issues. Like the hierarchy have, not extracting electronic data identification of people can understand. He is only an objective extract equivalent to a notary, but made no expertise conclusion.

   There are no hierarchy, a basic distinction, is the identification of a financial knowledge, knowledge of law. According to the performance difference is the rebate, or capitation clearing rebate proportion. This is not a data audit, financial personnel, can be resolved, is according to the contract, agreement, rules, methods to determine the actual settlement. "Identification" rebate differential grade is determined, according to the consumption of their rebate preferential conditions, by the public security authorities understood as head pyramid hierarchy.

(6Illegal identification report program). Should re identification.

  "The provisions of the criminal procedure law of the people's Republic of China" in article 121st, the investigation organ shall be the appraisal conclusion to be used as evidence to inform the suspect, the victim. If the criminal suspect, the victim can apply, supplementary identification or re identification.

   This case report because it was too far off, the public security organ to Tang Qingnan and Xu Xingchun, Tang Qingnan, Xu Xingchun et al. The case has raised objections, points out the audit conclusion audit conclusion completely wrong, with the previous completely inconsistent understanding of margin, the nature and against the calculation method of basic common sense. But the public security organs do not record, audit appraisal department no adoption, no audit review. Even the dissenting opinion materials are not attached.

   Judicial identification is a key piece of evidence, identification conclusion these contradictory and contrary to the basic financial knowledge, was obviously guilty presumption of the case handling organ guide. Tang Qingnan in the investigation organs inform him the appraisal report the case's conclusion, was solemnly asked neutral appraisal institutions shall be re identified outside of Jiangxi, we all the defendant in court, in court investigation process has to apply for re identification of judicial audit, other several co accused the plaintiff and defense also the proposed to re identification. So, ask the court to organize the appraisal. We apply for court, drawn to obtain Nanchang City Public Security Bureau 2010 splendid company does not constitute the crime of judicial authentication opinions. And entrusted appraisal institution outside of Jiangxi province to make objective appraisal.

Therefore, we have been before the hearing, judicial appraisal report crime not to apply to the court for obtaining Nanchang City Public Security Bureau seized in 2010 the company. The court also has. Can be ridiculous and error identification certificate. Please the court in this case is the appraisal conclusion to identify real science, do not hurry, to prevent misjudged cases.

 Please pay attention to the case of collegiate bench, excerpt from such two Its loopholes appeared one after another. identification book description, can be used as the Liaocheng trial decision?

Three, According to the judgment of the case law does not have

   This case is not in conformity with the basic features of criminal charges mlm. The "Regulations on Prohibition of pyramid selling" hit, are not goods or not value goods, fraudulent sales on the Internet, with the development of offline mode, diddle deposit behavior. While the Nanchang Pacific online goods of all true, cheap online customer voluntary comparison, purchase, supply directly from the factory, all is true. Not to deceive any consumer. All of the client's margin on own account, can be directly used to shopping, others will not be embezzled. More than three years, with no one customer complaints. At the same time set quality margin supplier, if there is fraud sales, to make the claim. Therefore it is not mlm.

(a) the organizational leadership pyramid selling crime and basic characteristics.

Organizational leadership pyramid selling crime, from the crime of contract fraud and the crime of illegal business crime in two, through the "criminal law amendment (seven)" accusation. The object infringed, one is to disturb the market order; two is the infringement of property rights, namely through the hierarchy of MLM catchy, misappropriation of the entry fee.

Tissue, crime, is to sell goods, services and other business activities as, participants are required to pay fees or purchase goods, services such as access to join the qualification, and according to the order of composition level, directly or indirectly to develop personnel quantity as payment or return basis, lure, stress participants continue to develop other people, diddle property, disrupt social and economic order of the pyramid selling activities.

The defender said: judging marketing behavior under the mode of BMC Is it right? Constitute the organization, leading the crime pyramid, should according to the subjective and objective consistent with the principle of integrity, unity, constitute elements of the requirements from the crime to consider, all elements of the situation only in this mode are in conformity with the organization, leadership spread pin the crime under the can be found BMC model rules of conduct constitutes a crime.

(two) the legal definition of pyramid sales crime standard

Our country for damage to market program marketing combat, is gradually developed. The legal standard of administrative law enforcement standards and criterion of punishment. Administrative law enforcement standards can not be applied to the punishment standard, only as a reference.

In 1998 April the State Council issued a ban on direct selling, "notice", the State Administration of industry and Commerce issued the notice. In 2000, the general office of the State Council issued another Notice No. 55 prohibiting pyramid selling. In 2005, the State Council formally promulgated Administrative Regulations "regulations prohibit pyramid schemes".

But the punishment standard, "criminal law" article 96, provided only limited to the National People's Congress of the law and the State Council regulations, regulations. Industrial and commercial authorities shall only refer to. Therefore, legal requirements analysis is only limited to the State Council, "the prohibition of marketing regulations", to determine the crime and non crime.

"The prohibition of marketing regulations"Article seventh:The following acts of pyramid selling:
(a) the organizers or operators through the development of staff, asked to be the development personnel to develop other staff to join, the development personnel directly or indirectly to the rolling development of the number of personnel for the calculation and payment (including material incentives and other economic benefits, the same below), to seek illegal interests;
(two) the organizers or operators through the development of staff, asked to be the development of staff pay costs or to subscribe to pay the cost of goods in a disguised form, made by adding or other staff to join the qualifications, to obtain illegal benefits;
(three) the organizers or operators through the development of staff, asked to be the development personnel to develop other staff to join, forming the offline relationships, and the following line sales performance for the calculation and payment line remuneration, to obtain illegal benefits.    

(three) the difference between BMC model and marketing

Control "the prohibition of marketing regulations" article seventh, BMC mode and the legal sense of the pyramid schemes are essentially different, do not constitute a pyramid sales crime.

First, open and not misleading.The operation of the company from the beginning is completely open and transparent, not only the information of the website, profit distribution system, risk warning, cooperation agreement, calm period details, open and transparent, and the most important is corporate finance has been done completely transparent. From two on, two judicial audit can confirm the above. These are very rare for a private enterprises, there is no fraud deception behavior.

Selection and identification of second, merchant. Not only will be able to pay to join.Cooperation with the company all integrity channel business, must have the status of enterprise legal persons or individual industrial and commercial business license business, signed a legal contract with company cooperate, otherwise can't cooperate. It is proved that the company to open up the market not to pull the head behavior, the cooperation behavior is legal contract.

Voluntary selectivity of third, margin not mandatory.6760000 merchants, the majority is not the direct customer margin. To achieve consumption can enjoy the integral rebate. No one forced him to pay margin. The 120000 channel is repeated visits, comparison, demonstration, voluntary choice by rapidly reach the rebate conditions pre margin mode. Integrity channel merchants pay credit consumption performance bond is according to the law of contract signed by both parties agreed by the enterprise. In order to prevent the client is misleading and cheating, we design the 15 to 45 day unconditional refund of deposit "cooling off period" and half "help the transfer period". Fully guarantee the voluntary and contract behavior. And telephone follow-up and recording, to verify the situation, inform the investment risk, to maximize the protection of business interests. Join the pyramid is induced with different.

Fourth, to ensure the realization of the return of the deposit.In the business after the performance of the contract, credit consumption bond will be refunded from 100%, 100PV starts to return. And, on the proof, the company has the actual return 1118000000. (the P8), shows that this model is completely honest, and MLM fraud "entrance fee" has essential difference.

Fifth, no head level, no capitation fee. The problem here is devoted to.

Sixth, real commodity, all real transactions, to produce the PV integral.The site listed commodities are according to the market price of 1 -- 50 percent off of sales, not only let the consumer in the process to obtain the consumption of PV integral, and promise, fulfill the false a compensate ten, every consumer's interests not to be violated, therefore, does not exist any customer, cheated margin and can't take the goods, or value is completely inconsistent. This is totally different with the mlm. The consumer will not be affected by any damage. Up to now, the company in more than three years of operation, is not present consumer deception or fraud complaints, no case of contract disputes.

In order to facilitate the comparison analysis, the features are as follows.

The difference between BMC mode and marketing in the form:

Marketing six major characteristics of e-commerce marketing characteristics of BMC

1	Well organized, secretive: marketing general took the staff get remote participation, well-organized, general practice off the assembly line contact alone, but the organizers distributed remote control command.	1	The enterprise established in accordance with the law, the network public management: in business people on their own independent management by contract, restrict each other, open contact with headquarters, branch, branch selected commodities.
2	Affinity: a "job", "partnership business", "travel", "meet" as an excuse to relatives, friends, fellow students, colleagues, to participate in pyramid schemes, in different places.	2	With the network actual product for common business: participants according to their own needs of location, market operation, according to the need of business, product variety. Only rely on the market.
3	Make wealth myth: use a seemingly reasonable bonus distribution system of heresies theory, advocating the rapid wealth, encouraging people to join.	3	The network is the quality of the products, the price advantage that profit space: the enterprise has clear rules for product sales price and rebate, the operators have the profit space, BMC is by means of rich work, more pay for more work.
4	Brainwashing: instilling uninterrupted to join from organization to centralized instruction, talk, rich thought, the participants believe firmly	4	Honesty: in addition to the concept of integrity training outside, and so the enterprise, and the product technical training, market orientation training, let the operator know itself, take the road of the development right.
5	High rebate: MLM organizations generally set a seemingly fair and very attractive "high rebate program", in the hubbub of marketing personnel, it is easy to make the person produces investment desire, lightly join MLM activities.	5	Visible profit distribution common business: all rebate conditions in the online public, in accordance with the contract to join, the rebate Bibi implemented, in accordance with the law, cooperation and free.
6	Virtual high commodity prices: props, pyramid selling commodities only props, the aim is to develop the personnel, cheat money, so it is commodity prices and the value of a serious departure from the pyramid schemes, many is difficult to measure the price of cosmetics, nutrition, health care equipment, clothing, some of the goods is the "three no" commodity.	6	There is about 100000 kinds of goods, high quality and low price: goods are real, price is lower than the wholesale price, sales are the benefits for consumers, products derived from the well-known enterprises or high-quality low-cost cooperative enterprises, products related to all aspects of life, genuine goods at a fair price.

 

Four, the act does not constitute a pyramid selling case the defendant

Marketing is to an individual (or group) interests to damage the interests of the public behavior; participants basically is the victim. Is on-line illusion confused line, to cheat money to. The pagoda form of personal (or small group of actors). BMC marketing model is guided by the market demand of social activities, information disclosure, without illusion, interest points PV, completely transparent, that is work, more pay for more work. Enterprise profit enterprises all, no money pagoda form.

The first,    Real goods sales, the prices of real and without deceit

With the MLM without credit, credit, quality is different. 2 ten million in Shangdu publicity on the Internet, consumers can be the same as other entity stores, other e-commerce public more.

Second.    Direct sales of commodities, but the channel of hand

Are customers place an order directly from the Internet directly receiving, channel operators without my goods, it is not possible to deal damage to consumers. Direct online open price, quality, and false a compensate ten suppliers online commitment.

Third.    Without any control, forced people to accept the training

Could not control for sales and development off the assembly line. Because of the Internet and online merchandise are highly publicized, cannot be misleading.

Fourth.    Not by a margin, so there is no chance to occupy a margin

All the alleged margin, in the electronic wallet every consumer in their own day, free shopping. Not a penny is damaged.

Fifth.The rebate from the supplier's sales profits rather than downline and margin

Liu Shugang received a rebate, but this is his team spending after the realization of the rebate, has nothing to do with margin. Margin is full can guarantee to refund consumers, now in his account, has been frozen in the public security. While the sales reached, manufacturers retained profit, is the source of security award. Because help manufacturers timely withdrawal of sales, production factory is willing to pay a return. All the back pay, are derived from the sales of the settlement, is not a capitation, according to how much return to pay the margin. This has been the court investigation confirmed. And this one is to control the fundamental error.

Sixth, no hierarchy, with the only Nanchang company direct settlement level

All consumers with wonderful company general ledger margin, shopping, rebate, with any one channel are not related. So there is no relationship between layers. Only the return rate is based on the performance of different standard rebate. Public security, link and the court, the hierarchy problem has been a lot of misunderstanding. The consumption discount rate level, direct misunderstood as head of pyramid sales level. The consumption credit is different, the discount rate of different levels, direct understanding is a pyramid of hierarchy. BMC mode is in the Pacific Ocean, online consumer credit is based on integral, no matter what, consumption is much rebate, enjoy the most preferential discount rate level. Instead of man's control level. The so-called regional distributors, just promise consumption amount of people, more willing to spend. All of his development of the people, are based on real consumption based. There is no control between people. A corner of the consumer, if able to consume great, he can achieve the highest discount. Return rate can also enjoy a large area of channels. Profits were distributed by consumption strictly.

   Seventh, not to hide the truth, trading, price, quality online publicity

Pacific this BMC model have the integrity of the training in philosophy, the concept of public, well documented, distributors can rely on comprehensive expected market situation and consumption ability of their own choice of the road of development, all the public training and keep the video data, not to conceal the truth, to all levels of government reporting, and NPC and CPPCC NPC CPPCC proposals are as like as two peas, without any exaggerated, no deception. The financial management of the company and millions of pen import, no case of omissions and errors, the website commodity sales in recent years has never had a case of fake appear, this is the area of electronic commerce is very difficult to do, a Crime Inc, how could there be so transparent real accounting information and sound system! In the process of surveyed also state the facts, not on the judiciary to conceal the truth.

Eighth, do not deceive the channel operators and consumers, the online public cannot cheat

   The channels and consumer deposit consumption is the trend of e-commerce, has been widely used in telecommunications, mobile, beauty, fitness and other industries, Ltd. margin in full compliance with the "contract law", commercial behavior is normal. The company produced 71% rebate and the traditional e-commerce site for promotion is the same reason. The site can be permanently guarantee any consumer transactions. At present, the website nature consumption to return the security deposit of nearly 20000 bottom channel merchants and convenience stores, accounted for the entire one hundred and twenty thousand channel 1/6. channel business to deposit hundreds of thousands, millions, tens of millions to the company, because I believe the company's culture and mission, the company developing so fast and we grasp the essence of the right direction to go value there is a direct relationship, rather than by deception of fiction to cheat agents large deposits, it is not long. Getting 1000000, 5000000, or even tens of millions of channel operators, their IQ, legal consciousness, ability to identify and risk awareness is not to doubt. On the development trends of management behavior in e-commerce market is 21 Taobao mall every day now, the turnover of more than 6000000000 yuan, all consumption Qingnan Mr. Tang is currently scheduled Taobao half month turnover, all go out to promote PV to Taobao may be less than one year of sales.

Ninth, no harm no one complaint MLM

   All crime boils down to has no harm to society. The model of Tang Qingnan's innovative BMC no harm to society, not the true sense of the victims. Play group purchase price advantage. The supplier to the wonderful company, Pacific net profit, finally let the Pacific net profit delivered to consumers, the Quartet (the supplier, Pacific Ocean network, distributors, consumers Each takes what he needs.), especially for the channel operators and consumers, more consumption, more promotion can enjoy more discounts and more of the rebate, the maximization of their own interests, also in line with the distribution of the work principle. Read our foreign to some of the channel operators very impressive, they were fighting, even her lawsuits or face a prison sentence also insisted that he was not deceived, that the company is legal, optimistic about the business model. Say with a clear conscience qualified distributors can turn around, go free, through natural consumption can make the bond return, no infringement of the channel property interests, operation mode and there is no evidence that the impact on national or economic, social management order of nanchang. And MLM victim often is deceived, threatened or personal limitations, is the result of dissipate one's fortune, lose everything, cause social stability event a lot of problems.

    Tang Qingnan and others were arrested in recent two years. But the accused of the "pyramid selling crime" Pacific direct purchase, up to now still in the effective far Ying, it was through the electronic commerce network in place an order shopping every day. Two years, not a customer complaint Pacific MLM fraud. On the contrary, in Nanchang six day session, all support Tang Qingnan, to protect Tang Qingnan, asked for a sentence of all the defendants not guilty. Crime is a basic feature of social harmfulness, the case no such consequences.

Five, On this case to consider the social effects

   Law can only hit a few, not many people into sin. But in this case a clear violation of this principle. The prosecution standard in this case, the National more than 12 channels, can catch up to. In the case of improper handling will cause a national public security events. The case involves 32 provinces and cities nationwide and overseas 6760000 online shoppers, 120000 clusters of consumers (in this case called channels), and more than 600 accused of a crime, involving a total of about 6000000000. According to the investigation of qualitative Nanchang, 120000 people are arrested and sentenced. Law can only hit a few, to protect the most. Law enforcement pattern that must have a problem. Now there are more than 500 defendants, Nanchang decision, once the case is guilty, the judge will immediately a large number, will continue to hunt for case 120000, will cause serious consequences.

   This case will also have a demonstration effect on the development of electronic commerce China. In recent years, China e-commerce field a very typical case, the same Taobao, Alibaba, Jingdong mall have similar business method. Will decide the development direction of Chinese e-commerce, and electronic commerce national development strategy. Involving direct knowledge, financial knowledge, knowledge of e-commerce and the criminal law, civil law, criminal law and determine the boundaries of, very complex. Experts this pattern is not marketing, e-commerce but rising sales. If convicted of the Pacific electronic direct marketing case, would be a serious blow to China national e-commerce business development, international business China market share.

Six,  To prevent the tendency of judicial justice of law enforcement

   The case has been decided not to catch Nanchang. Results in Shandong, Jilin, Henan police arrested draw money, 2011 year in July, Shandong Liaocheng police detained to join Shang Liu Baohua, childhood, the procuratorial organs checks that do not constitute a crime shall not arrest. The local public security demanding millions of "bail" after the release of two people to settle a matter by leaving it unsettled. In Nanchang public panic, re arrests, 11 million funding seized in Nanchang headquarters, don't let other organ of public security and national planning to go. Shandong Liaocheng Shenxian public security organs, illegal defrauded Liu Baohua, childhood about 10000000 "bail", let people settle a matter by leaving it unsettled, also no longer and. The public security organs in handling the Pacific electronic commerce case, obvious benefit for the economic interests, law enforcement, causing the error comparison, wrong arrest.

Seven, no criminal according to the administrative management, excute without teaching

      The State Council "the prohibition of marketing regulations" provisions of the administrative investigation. (Fourteenth: the administrative department for Industry and commerce at or above the county level shall take the following measures to be suspected of MLM when investigating activities. Article twenty-fourth the provisions of the provisions of the seventh act, organize marketing, by the administrative department for Industry and Commerce and confiscation of illegal property, confiscate the illegal income, from 500000 yuan to 2000000 yuan fine; constitutes a crime, shall be investigated for criminal responsibility according to law. The provisions of the provisions of the seventh act, introduced, deception, coercion to participate in pyramid schemes, the administrative department for Industry and Commerce shall be ordered to stop illegal activities, the confiscation of illegal property, confiscate the illegal income, from 100000 yuan to 500000 yuan fine; constitute a crime, criminal responsibility shall be investigated. The provisions of the provisions of the seventh act, to participate in pyramid schemes, the administrative department for Industry and Commerce shall be ordered to stop illegal activities, and may be fined 2000 yuan.) The first guide in education, (fifth: the administrative department for Industry and commerce, public security organs shall investigate and deal with pyramid selling, should adhere to the principle of combining education with punishment, educate citizens, legal persons or other organizations to consciously abide by the law.) For public security criminal investigation.

    The State Council "the prohibition of marketing regulations" regulations. The priority is the responsibility of the administrative punishment. The first line of defense against pyramid schemes, is the industrial and commercial administrative enforcement of law. But in this case, study of collective security, prosecution, court, notice does not constitute a crime, then sent the police to the company, a monitor for more than a year, and approval of company's expenses. Now suddenly the public security means more arrests, no administrative warning, review, punishment. Adjustment of the market economy, civil law, administrative law, criminal law should be and, to the enterprise cannot excute without teaching, a stick kill. This behavior if not standard places, is "civil law" should be used, "administrative law" means to guide and standardize, should not be directly used in "criminal law" means to punish.

The collegial panel judges:

  The above argument, we believe that the case does not constitute a pyramid selling crime, but a new e-commerce outstanding business model. Even the Nanchang corporation may not constitute a crime, without their own organizations and independent economic settlement of Liaocheng channel, it may not be a crime. The key, in addition to the basic facts not known, more important is the qualitative problems are how to market economy environment, the information society under the electronic commerce environment the new business model. The defendant Liu Shugang never asked anyone to pay fee "or purchase goods, services such as access to join the qualification". The defendant Liu Shugang never to what organization is qualified to join, if obtained what qualifications, the qualification is not a defendant granted. The case for all levels of business channels and west life investment development limited company is the agent and cooperative relations to reach an agreement, in accordance with the payment of credit consumption margin contract agreed by the parties, and not heeding the defendant Liu Shugang requirements. Without anyone to "according to the order of composition level". Never "directly or indirectly to develop personnel quantity as payment or return basis". Never "lure, stress any people continue to develop other people". Never in any way for the property of others. All channels are all voluntary credit consumption margin payments to Jiangxi Life Investment Development Co., Ltd., the defendant Liu Shugang and not from interception or interests.

   In this case, the defendant Liu Shugang has no subjective organization, leadership pyramid selling deliberately, objective no organization, leadership pyramid selling activities, the defendant is not the so-called organizers and leaders, the defendant perform marketing mode does not conform to the crime of all elements. The defendant is a legitimate business behavior, the defendant to perform effective contract legal, actually acquire legal interest, there is no crime, the prosecution of the accused to evidence, can not form a complete chain of evidence, illegal, illegal profit can not prove that the defendant behavior, but can not prove that the defendant's conduct in accordance with the criminal law 224th stipulation of crime, the lack of evidence, should not the defendant is guilty. This is a modern advanced e-commerce mode, due to the new things do not understand and mistakenly arrested false litigation case, a serious blow to the e-commerce business model Chinese emerging, is the concept behind the political and legal work, can not adapt to the progress of science and technology, cannot adapt to the new mode of market operation induced misjudged case. In this case the procuratorial organs and people's courts are cautious, the two time checking, three extended review of prosecution. The court hearing for the three time, they are embodied in the case investigation error checks and careful attitude. Now, is determined to make a verdict of acquittal.

  The above argument, please reference and adoption of the collegial panel.

                                     Defenders: Beijing Heng Law Group firm

                                   Chen Youxi

                                                  Tuesday May 21, 2013

 

Liu Shugang case of Defense

 

Shandong Puxin law firmFeng Tianhong

 

The presiding judge, judge:

   Shandong Puxin law firm shall accept the defendant Liu Shugang wife Xie HaiYan's Commission, and the defendant Liu Shugang's consent, appoint us as defendant Liu Shugang's lawyer. After accepting the entrustment, we refer to the materials, met with the defendant, participated in the court investigation, just listen to the prosecutor of public opinion, had the further understanding to the case facts, evidence and relevant legal problems. Now with the facts, evidence and the relevant provisions of the law court ascertained, the defending opinions, please the court to reference.

   The defenders by collecting evidence to that court investigation and prosecution, the defendant Liu Shugang committed the crime organization, could not be established.

First, the organization, leading the crime pyramid is the establishment of new criminal law amendment charges, we have the necessity of the definition and constitutive requirements of the crime have a preliminary understanding and the understanding. Article 224th of the criminal law of the organization, leadership: to sell goods, services and other business activities as, participants are required to pay fees or purchase goods, services such as access to join the qualification, and according to the order of composition level, directly or indirectly to develop personnel quantity as payment or return basis, lure, stress participants continue to develop other people, diddle property, disrupt social and economic order of the pyramid selling activities, organized crime. The subject of this crime is the organizer or leader; the subjective aspect is direct intention, knowing that is MLM organization, leadership; the object is the social and economic order; the name of the objective aspect of the performance to the sales of goods, services and other business activities, participants are required to pay fees or purchase goods, services such as access to join the qualification, and according to the component level a certain order, directly or indirectly to develop personnel quantity as payment or return basis, lure, stress participants continue to develop other people, diddle property.

So, we from the elements of the crime analysis to specific elements, Liu Shugang does not conform to the crime the defendant.

One, from the main body of the crime watch, defendant Liu Shugang does not meet the conditions of this crime subject.

The crime refers to the organizer, leader, is refers in the pyramid selling activities in organization, leadership, decision, control the promoters, and the workers responsible for planning, directing, coordinating, arrangement of important responsibilities in the pyramid selling activities in the. Defendant Liu Shugang and west life Investment Development Limited is the only agent cooperation contract relationship, not the organizer or leader.

Two, from the objective elements of the crime analysis, Liu Shugang of the accused person does not have the behavior characteristics of the crime.

1, the defendant Liu Shugang never asked anyone to pay fee "or purchase goods, services such as access to join the qualification". The defendant Liu Shugang never to what organization is qualified to join, if obtained what qualifications, the qualification is not a defendant granted. The case for all levels of business channels and west life investment development limited company is the agent and cooperative relations to reach an agreement, in accordance with the payment of credit consumption margin contract agreed by the parties, and not heeding the defendant Liu Shugang requirements. Moreover, "to pay the cost or purchase goods, services such as access to join the qualification", widespread and accepted in real life, our country does not have any laws, regulations prohibited.

  2, the defendant Liu Shugang never will anyone "according to the order of composition level". Even in the presence of "according to the order of composition level" of the facts, it is not the defendant Liu Shugang, judging from the available evidence at all levels of distributors level are Jiangxi Life Investment Development Company Limited for the defendant Liu Shugang, not about. They are subject to independent and defendant Liu Shugang equal, both directly and Jiangxi life investment development limited relationship, do not accept the defendant Liu Shugang's management and control.

3, the defendant Liu Shugang never "directly or indirectly to develop personnel quantity as payment or return basis". The defendant in the case of Liu Shugang did not need to all levels of distributors, to compensate, did not make any "payment or return basis", the defendant Liu Shugang payment, is based on their performance in turnover, Jiangxi life investment development limited to calculate, if there is no turnover, the number of personnel again many, also won't get a penny.

4, the defendant Liu Shugang never "lure, stress any people continue to develop other people". All channels are after a cooling off period of 15 days, voluntarily pay good faith margin, become Jiangxi life investment development limited channel. Calm period, the channel can be unconditional refund, calm period if there are special circumstances, can also be returned, the defendant Liu Shugang is only the extension of the marketing mode, there is no attractant activity.

5, the defendant Liu Shugang was never in any way for the property of others. All channels are all voluntary credit consumption margin payments to Jiangxi Life Investment Development Co., Ltd., the defendant Liu Shugang and not from interception or interests, has not been the victim to confirm, defendant Liu Shugang for their property.

Three, subjectively, this crime in the subjective performance is direct intention, illegal profit-making purposes. The perpetrator knew their implementation schemes, is prohibited by the state regulations, but to achieve illegal profit-making purposes, continue to implement this behavior, and the harm results occurred with hope and positive attitude in pursuit of. West life investment development limited company has not yet been identified as the pyramid selling organization. Liu Shugang of the accused person has no subjective organization, leadership pyramid selling activities intentionally, deliberately not illegal profits.

Third, in the case of the court drew the attention of a few:

1, guilty of "premise, the organization crime is:" there must be a pyramid selling activities exist. But the case lack this vital. A series of acts performed by the defendant, are derived from the Jiangxi life investment development limited, even in the presence of organizational leadership pyramid selling activities, it is Jiangxi life investment development limited company and the person in charge of the crime, not concerned with the defendant Liu Shugang. However, the existing evidence: Nanchang Municipal Public Security Bureau that Jiangxi life investment development limited company is suspected of organizational leadership pyramid selling case does not constitute a crime shall be revoked, and criminal cases; Shangqiu City Administration of industry and Commerce of the branch, Development Co. Ltd. of Jiangxi life investment in organizational leadership pyramid selling case made does not constitute the administrative pyramid schemes. Jiangxi life investment development limited company and the former head of Tang Qingnan are not a pyramid scheme, does not constitute a crime, and will serve as the defendant agent partners in crime, shall be investigated for criminal responsibility, is obviously not in conformity with the laws of logic. From the definition of the logic of language the crime can be identified: to determine whether the organization, constitutes a crime, must first be clear whether there are "pyramid schemes", but from the current view of the evidence, the case does not exist the pyramid selling activities, the defendant can not constitute the organization, the crime.

2, the defendant is a criminal case, in violation of the "law of criminal procedure" and "the prohibition of marketing regulations". "Criminal Procedure Law" the eighty-third stipulation: the public security organ or the people's procuratorate finds the facts of a crime or a criminal suspect, shall be in accordance with the scope of jurisdiction, investigation. According to the State Council, "the prohibition of marketing regulations" fourth article: the administrative department for Industry and commerce, public security organs shall, in accordance with the regulations, within the scope of their respective duties more pyramid selling. Rule eighth: the administrative department for Industry and Commerce in accordance with the regulations, pyramid selling are responsible for dealing with the regulations prescribed in article seventh. Rule thirteenth: the administrative department for Industry and Commerce and pyramid selling, suspected of a crime, it shall transfer the case to the public security organ for investigation; the public security organ for investigation the pyramid selling case, the investigation does not constitute a crime, it shall transfer the administrative department for Industry and Commerce and. The above provisions can be seen, although the criminal cases to the organizational leadership pyramid selling has jurisdiction, but not the power that the mlm. Therefore, the public security organ, suspected of the crime of pyramid selling case only industrial and commercial organs to exercise criminal jurisdiction. The case files and no effective legal document the authorities recognized the defendant's acts constitute a pyramid scheme, the public security organ shall not be entitled to directly determine the pyramid selling, not directly on the criminal case.

3, the defendant is business amount, illegal profit on the basis of a serious shortage of. The lack of relevant certificate issued by bank remittance voucher or the lack of the marketing system, all running account, financial account, should have the evidence, if not the above proof, its amount should not be recognized. The evidences provided by the prosecutorial organ be reduced to fragments, unable to form a complete chain of evidence to prove the allegations of business value.

In this case, the defendant Liu Shugang has no subjective organization, leadership pyramid selling deliberately, objective no organization, leadership pyramid selling activities, the defendant is not the so-called organizers and leaders, the defendant perform marketing mode does not conform to the crime of all elements. The defendant is a legitimate business behavior, the defendant to perform effective contract legal, actually acquire legal interest, there is no crime, the prosecution of the accused to evidence, can not form a complete chain of evidence, illegal, illegal profit can not prove that the defendant behavior, but can not prove that the defendant's conduct in accordance with the criminal law 224th stipulation of crime, the lack of evidence, should not the defendant is guilty.

Fourth, sentencing defense, if the court finds that the defendant Liu Shugang guilty, the defendant Liu Shugang consistently good performance, has not received any criminal and administrative punishment and the second is. So far, no individual interests are hurt, do not cause harm to the society, not to be serious.

The organization, leading the crime pyramid is the establishment of new criminal law amendment charges, the relevant judicial interpretation to unfavorable to sentencing no provisions under the condition of the defendant sentencing case is too heavy. So according to the "on the implementation of Leniency" criminal policy proposals fourteenth, 16, the provisions of Article 19, "guidelines on sentencing rules for the implementation of the" Shandong Province in sentencing opinion guiding principles and probation applicable provisions of part and the "PRC Criminal Law" the provisions of article seventy-second, requests to the lighter punishment, probation.

The above argument for reference and adoption of the collegial panel

                                                             

                                                   Defenders: Shandong's new law firm

                                   Feng Tianhong

                                                      Tuesday May 21, 2013

The third session