新型冠状病毒肺炎疫情期间防疫物资“套路购”的认定及其刑事规制

Identification and Criminal Regulation of"Routine Purchase"of Preventive Materials During COVID-19 Pandemic

新型冠状病毒肺炎疫情期间涉及防疫物资的违法犯罪,主要表现为“卷款潜逃型”与“销售伪劣型”,应分别以诈骗罪和生产、销售伪劣产品罪定罪处罚。而防疫物资“套路购”行为是指,没有真实交易意图,以低价出售防疫物资为名诱使他人先行支付货款,形成资金池后再视情形大幅加价或另售他人,从而非法牟取利益、扰乱市场秩序的行为。此类行为影响范围广、危害大,且民事、行政手段尚不足以有效规制,应及时从刑事上予以打击。借鉴打击“套路贷”的司法经验,以“刑事实质穿透民事外观”的思路为指导,并以相关司法解释为依据,此类行为应按照“哄抬物价型”非法经营罪定罪量刑。

The crimes involving Materials for Preventing and Controlling Covid-19 during the pandemic are mainly manifested as"absconding with money"and"selling fake and inferior products",which should be convicted and punished respectively with the Crime of Fraud and that of Producing and Selling Fake and Inferior Products.However,"Routine Purchase"refers to the behavior of inducing others to pay at a low price in advance,forming a fund pool,and then substantially increasing the price or selling to others according to the situation,so as to illegally seek benefits and finally disrupt the market order.This kind of behavior has a wide range of influence and great harm,while the available civil and administrative means are not enough to effectively contain it,so we should crack down on it with the criminal law.Drawing on the judicial experience of fighting against"Routine Loans",guided by the idea of"finding out criminal essence under the civil guise",and based on the relevant judicial interpretation,this type of behavior should be classified as the Crime of Illegal Business Operation of Driving Up Prices.