组织、领导传销活动罪若干问题研究

On Several Issues of the Crime of Organizing and Leading Multi-level Marketing Activities

在罪刑法定原则指导下,准确有效地适用《中华人民共和国刑法》第二百二十四条之一无疑是打击传销违法犯罪行为的应有之义。将“骗取财物”认定为组织、领导传销活动罪的表面构成要素,根据直销行业的发展特点合理认定“变相要求交纳费用”,以及准确认定直销企业的组织、领导传销活动罪的共犯责任和行政连带责任,有利于严厉打击组织、领导传销活动的违法犯罪行为。在认定传销犯罪时,应基于传销治理的经济效果,将仅满足传销形式特征但不具有实际经济危害性的经营活动出罪。单纯团队计酬式经营活动不仅不具有刑事违法性,也不应具有行政违法性。

Under the guidance of the principle of legality,accurate and effective application of the article 224 of The Criminal Law of the People′s Republic of China undoubtedly carries the proper significance of combating the MLM activities.The practice that the"defrauding property"should be identified as the superficial elements of the crime of organizing and leading the MLM activities,that the direct selling industry should be recognized reasonably as"disguised demand for payment of fees"in line with its development characteristics and that the joint liability and administrative mutual liability of the direct selling enterprises should be determined precisely as the crime of organizing and leading the activities will be conducive to crack down the illegal and criminal acts of organizing and leading MLM activities.In ascertaining the crime of multi-level marketing activities,it is reasonable to depend on the economic effect in coping with the activities,and decriminalize those activities which only meet the characteristics of MLM forms but do not create factual economic harms.And,the team actually paid business activities should be exclude from the criminal illegality,nor should they bear administrative illegality.