Babbitt Column | MLM in currency circle, money recovery or return for buyers?

Original: Xiao Sa Lawyer , Author: Tan Guo Hao, Xiao Sa

I wanted to buy coins and make a fortune, but I didn't want the issuer to become an MLM organization, suspected of breaking the law and committing crimes; all participating funds will face collection. At this time, whether the money purchased can be recovered becomes the most concerned issue of the buyer. The crime of establishing an organization to lead MLM activities. The upper and lower levels of MLM activities usually establish an accomplice relationship; all the money raised is generally regarded as illegal income. If you are cheated to join and then recommend others to join and thus get tokens and cash back, the profits will usually be recovered as illegal income. So, if you are cheated into an organization, can you recover the "entry fee" you have paid?

Article context:

1. Recovery may not be confiscated, and a refund may be obtained;

2. Scope of recovery: illegal income within the scope of guilt;

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3. Who will refund the money: the calculation of "illegal income".

Recovery is not a confiscation, you can get a refund

Article 64 of the Criminal Law stipulates the collection and refund of criminal proceeds: "All property obtained by criminals should be recovered or ordered to refund." In view of the need for evidence to determine the amount of crime, in practice, generally The funds involved in the case shall be collected first; the full amount of the case shall be investigated before disposal.

There are two other ways of recovering the illegal income: " The legal property of the victim should be returned in time; the prohibited goods and personal property used for crime should be confiscated." It can be seen that only the prohibited goods and the person used for crime The property should be confiscated. The legal property of the victim shall be returned in time after it is collected.

Regarding the return of illegal income to the victims after collection, there are specific provisions in the "Some Provisions of the Supreme People's Court on the Implementation of Criminal Judgments Related to Property". Article 10 of this regulation provides:

"The people's court shall collect the stolen money and its proceeds together with the proceeds.

(1) The person subject to execution invests or purchases the stolen money and stolen property, and the people's court shall recover the resulting property and its proceeds.

(2) The person subject to execution invests or purchases the stolen money and other legal property together, and the people's court shall recover the share and income of the resulting property corresponding to the stolen money and the proceeds. "

Subsequently, the same article clarified the rules for the restitution or compensation for the loss of recovered property: "For the loss of the victim, it should be returned or compensated according to the actual loss determined by the criminal judgment.

Unfortunately, buying money involves the crime of organizing and leading MLM activities. If it is only the lowest-level buyer who has not obtained cash by recommending others to join, then the money used to buy money is the legal money of the victim, according to Article 64 of the Criminal Law and the foregoing Should be returned in a timely manner; that is, it should be returned in accordance with actual losses.

If the perpetrator promotes virtual currency, and thus obtains cash, and forms a hierarchy, which has violated the crime of organizing the leadership of MLM activities, the property that it collects from the bottom line, such as currency purchases and cash, may be regarded as illegal gains and should be punished according to law Confiscated. These amounts are illegal gains for the crime of organizing and leading MLM activities; but for offline buyers, these amounts are simply losses caused by fraudulent purchases of virtual currency; according to the aforementioned regulations, they should still be returned to The actual purchaser who went offline.

The money paid by the person who promoted the coin after buying it is also the “legal property of the victim” mentioned in the provisions of the preceding paragraph, and the “loss” of the victim. The reason is that these coin buyers are simply victims when they buy coins and pay fees such as "entry fees"; since they have not been promoted and charged for fees, and have not committed an accomplice, they cannot yet establish an accomplice.

Only after it has carried out behaviors such as collecting entry fees to the line and leading the organization's MLM activities, can it be determined that it has joined the online joint crime. Therefore, before he joins the joint crime, the identity of the victim cannot be denied; the fees paid to the upper line are calculated on the one hand as illegal gains on the line; on the one hand, it is also the amount of damage the perpetrator suffered. According to the provisions of the preceding paragraph, after collecting their online illegal income, they shall be returned according to their actual losses. Even if it is recognized as the middle level of the MLM organization, as a victim, it should still have the right to request its upper level to return the corresponding illegal income in accordance with the property damage caused to it.

Scope of recovery: illegal income within the scope of conviction

As mentioned before, Article 64 of China's Criminal Law stipulates: "All the property obtained by criminals in violation of the law shall be recovered or ordered to refund". What is the scope of "illegal income" that constitutes a crime in the behavior of buying coins?

This article expressly stipulates that the person who constitutes a crime shall only recover or order the refund of the illegal gains. On the contrary, for persons who do not constitute a crime, the provisions of this article cannot be applied to their income. Therefore, if the level of income does not reach level 3, its behavior does not constitute this crime, and the income is not illegal income as mentioned in the previous "Criminal Law", and the recovery system in criminal procedures does not apply.

It can be seen that whether the property involved should be stipulated by the criminal law, and the recovery and refund of compensation through the criminal procedure depends on whether the conduct establishes an organization and leads the crime of MLM activities. Only when a crime has been established, the illegal gains shall be subject to the recovery and compensation system stipulated in Article 64 of the Criminal Law ; if the crime has not been established, the loss shall be recovered through other legal means.

It is important to note that the crime of organizing and leading MLM activities not only punishes the original promoters, but also those who later participate in MLM activities. Later participants, senior managers who play a key role in MLM organizations, should also be recognized as organizations and leaders and will be subject to penalties. For the elements of the crime of establishing an organization and leading MLM activities, you can refer to the previous analysis: "Original | How far is multi-level marketing from" MLM "? 》

In consideration of factors such as the scope of management, the level in the marketing network, and the amount of money involved, the victims who paid the "entry fee" to the upper line and collected the "entry fee" to the lower line and formed a hierarchical structure, also It is likely to be determined as an organization or leader, and the crime of establishing an organization or leading a pyramid scheme will be punished by criminal punishment. The illegal income shall be recovered or refunded through criminal procedures.

Who refunds who buys money: calculation of "illegal income"

According to Article 64 of the Criminal Law, only "illegal income" should be recovered and refunded. Unlawful income, literally, refers to property acquired through illegal (including but not limited to crime). Article 2 of the Supreme People ’s Procuratorate ’s “Management Regulations of the People ’s Procuratorate ’s Criminal Proceedings” stipulates that the involved property includes the criminal suspect ’s illegal income and its fruits, the property used for the crime, the illegally held contraband and other related to the case The property and its fruits .

According to the foregoing provisions, the crimes that generate illegal income are divided into two categories:

(1) Obtaining illegal gains in crimes of interest type ; such as theft, corruption, theft of stolen goods and bribery in bribery;

(2) Operational interest- based crimes, such as the crime of high- profit transfer.

It can be seen that illegal income includes not only the property obtained through illegal and criminal acts (that is, the original illegal income to obtain interest ), but also the natural and legal fruits that may occur in these properties and the property obtained from the operation of the property Sexual interests (ie, derived illegal income, operating profit type ). As far as the former is concerned, the activities that generate revenue are illegal; revenue is the object or result of illegal behavior. For the latter, the income-generating activities are legal; only the principal used to generate the income is suspected to be illegal.

The aforementioned two types of illegal income are generated in different ways, and their recovery calculations are also different. For the illegal gains of profit-based crimes, the illegal property obtained is itself the amount of illegal gains; for the illegal gains of profit-based crimes, the profits from normal operations should be deducted. For example, in the crime of high-interest loan transfer, the illegal income usually refers to the interest spread, rather than the entire amount of the loan.

Normatively, the attitude stipulated by the law is also very clear: In 1995, the Supreme People ’s Court's "Reply on How to Determine the" Amount of Illegal Income "in Criminal Cases on the Trial of Production and Sale of Fake and Inferior Products" stated: The "Amount of Illegal Income " stipulated in the Decision on Crimes of Selling Fake and Inferior Commodities refers to the amount of profit from the production and sale of fake and inferior products. Literally, the "illegal income" here should be deducted from the corresponding cost.

In judicial practice, it is generally believed that the amount of the actual product purchased is the amount of legal operation and should be deducted; and when the actual product is provided without the actual product (for example, human input in illegal medical practice, etc.), the corresponding cost is not deduction.

In the crime of organizing and leading MLM activities, there is a situation of "remuneration by head" and other cash back to the "online". According to Article 8 of the Measures for the Determination of Illegal Income in Administrative Penalty Cases of the Industry and Commerce Administrations (State Administration for Industry and Commerce No. 37): "In the MLM activities, the illegal gains obtained by pulling people's heads and defrauding entry-level MLM will be calculated based on the total income of the parties . "

It can be seen that the "tap" paid to the upper line is not the income of the party at the level in the MLM organization; it is the income of the online, which should be deducted and calculated into the amount of illegal income on the line. After the collection of illegal income as an online, according to the above, timely return to the lower line.

That ’s all for today ’s sharing, and thank you readers!

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