China's economy has made a qualitative leap after the reform and opening up, but the shortcomings hidden in the rapid economic development have also been revealed, among which more and more forced trading behaviors that disrupt the market transaction order, seriously affecting the normal development of the economy.
In order to regulate forced trading, the state has introduced the Eighth Amendment to the Criminal Law, which adjusts the provisions of the crime of forced trading to adapt to the increasingly complex forced trading behavior in society.
The new changes impose greater legal constraints on forced trading practices, allowing the market economy to develop healthierly and faster.
Among them, "liquor trust" cases are a typical criminal method in the crime of forced trading, and in "liquor trust" cases, the number of participants in the behavior is large, and the form is generally a gang, forming a certain organizational scale.
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Case summary
In June 2012, defendants Zhu Junhui and Ye Moucui (who are at large) jointly invested in the establishment of a wheat field café near Binjiang Park, Huicheng District, Huizhou City.
Soon after, Zhu Junhui, Ye Moucui, "Xiao Zhu" (the real situation is unknown, at large) and others recruited Xie Moutao, Peng Mou, Chen Moumin, Qin Mouguan, Qin Moulian, Yuan Moubo (all six of whom have already been sentenced) and others to force others to trade in groups at the wheat field café.
In mid-July 2012, Xie Moutao served as the leader of the "T Group" and Peng was responsible for online chat with the victim, acting as a "keyboard player", posing as a woman, and asking the victim to meet through online chat.
After success, the victim information obtained by the online chat was sent to Qin Mouguan, Qin Moulian, and others who acted as "wine nurses".
Qin Mouguan, Qin Moulian and other "wine nurse women" met with the agreed man, and took the man to the wheat field café to consume red wine, coffee or snacks and other foods, and Chen Moumin cooperated with the "wine nurse girl" as an order waiter.
These foods are purchased at low prices, and after consumption, the victims are required to settle the bill at a high price of hundreds to thousands of yuan, and the victims find that they are unwilling to pay, Xie Moutao, Chen Moumin and others surround the victims to exert psychological pressure on them and force them to pay.
Up to the time of the case, Zhang Mouqi and other 5 victims were forced to spend a high amount of RMB 6,290 by Xie Moutao, Chen Moumin, Peng Mou, Qin Moulian, Qin Mouguan and others, and 9 victims of Huang Moubo were forced to spend a high amount of RMB 4,801 by Yuan Moubo and others, a total of RMB 11,091.
The court of first instance held that the defendant Zhu Junhui ignored the national law and formed a group to forcibly buy and sell goods by threat, and the circumstances were serious. His actions constitute the crime of forced trading.
The defendant appealed.
In the end, the court of second instance dismissed the appeal and upheld the original judgment.
Interpret the law by case
Is the behavior of Zhu and others in line with the crime of forced trading?
Article 226 [Crime of Forced Trading] of the Mainland Criminal Law stipulates that if any of the following acts are committed by means of violence or threats, and the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall be fined concurrently or alone; where the circumstances are particularly serious, they shall be sentenced to fixed-term imprisonment of not less than three years and not more than seven years, and shall also be fined:
(1) Buying and selling commodities by force;
(2) Forcing others to provide or accept services;
(3) Forcing others to participate in or withdraw from bidding or auctions;
(4) Forcing others to transfer or acquire shares, bonds or other assets of a company or enterprise;
(5) Forcing others to participate in or withdraw from specific business activities.
Those in this case have a real trading background.
Some scholars argue that the difference between the high price collected by the defendant and the general transaction price in the market is too large, which violates the normal trading principles of the market and cannot be evaluated as a trading behavior.
One of the most common trading behaviors in society is the buying and selling of commodities, which must strictly abide by the basic principles of transactions, that is, free transactions, equivalent compensation and other basic principles.
In this case, although the high price charged by the actor was much higher than the normal price, it cannot be denied that there was a real transaction background in this case.
The reason is that Zhu has the qualifications and venue for trading, and it is not a temporary transaction.
It should also be pointed out that the place where the case occurred was a coffee shop, and the general goods in the café must be higher than the normal trading price in the market, although the difference between the commodity price and the sales price in the market was very large, but it did not reach the point of losing the trading background, and it should be considered that the perpetrator had a real trading background in this case.
In this case, the perpetrator used violence, threats and other means to facilitate the completion of the transaction.
Although the perpetrator used violence, the degree of violence was low, it only gave the victim mental pressure, and did not completely suppress the victim's resistance.
It can be inferred that the transaction was against the true will of the victim, but the perpetrator used minor violence to force the victim to pay a high price.
In addition, the perpetrator uses violence in order to complete the transaction, not to illegally occupy the victim's property.
The perpetrator ultimately constitutes the crime of forced trading, not robbery and extortion.
In this case, the perpetrator organized multiple forced transactions, and the amount involved reached 1,109 yuan.
According to Article 28.1 of the Provisions on Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (I), the perpetrator's conduct fully meets the standard of "serious circumstances" in the judicial interpretation.
The perpetrator Zhu hired a "liquor girl" to lure the victim to the coffee shop he operated to make a purchase, charging a high fee, and when the victim found that the fee was too high and was unwilling to settle the bill, he used violence, threats, and other means to force the victim to pay a high price against his true will.
Zhu's behavior violated the normal market trading order, and used violence and threats to force the victim to pay a high price, and met the prescribed standards for serious circumstances, and also fully met the constituent elements of the crime of forced trading, which constituted the crime of forced trading according to law.
In this case, the objective behavior of the "wine nurse girl" luring the victim to the café for high consumption was only a preparatory act to help Zhu practice forced trading, and if the "wine nurse girl" did not know that Zhu and others were preparing to carry out forced trading on the victim, then the "wine nurse girl" lacked the subjective purpose of constituting the crime of forced trading.
At this time, the "wine nurse girl" is not guilty.
If the "wine nurse girl" knows the subsequent forced trading behavior of Zhu and others, then the "wine nurse girl" has the subjective aspect of the crime of forced trading, and constitutes an accomplice to the crime of forced trading by Zhu.
In this case, the waiter at the coffee shop used violence and threats to force the victim to pay a high price, which can be evaluated as the commission of the crime of forced transactions.
These waiters used violence and threats, with the ultimate goal of forcing victims to pay the high price generated by spending in coffee shops and obtaining high profits.
In the context of the existence of real transactions, the author believes that the violent means of the waiters in coffee shops cannot be separately identified, and it cannot be considered that as long as violence is taken, it is the crime of robbery, and the crime of extortion is not used without violence, which should be combined with the objective behavior of the perpetrator.
Its objective behavior is to serve the smooth progress of the forced trading behavior, so it should be said that this behavior is evaluated as a conviction and punishment for the crime of forced trading.
The author also needs to point out that if in the course of the crime, some serious consequences are caused by the use of violence, such as causing serious injury or death to the victim, it should be dealt with according to the imaginary competing crime, and the forced transaction act is imagined to be a competing felony.
In summary, if the "wine nurse girl" already knew the ultimate intention of Zhu and others before committing the act of seduction, she must constitute an accomplice to the crime of forced simplicity, otherwise it will not constitute a crime; Bar attendants are guilty of aiding the crime of forced trading.
Case reflection
The "liquor trust" case is a new type of crime that has emerged in recent years, and the perpetrator uses a variety of criminal methods when committing crimes.
The forced trading behavior embodied in the criminal process seriously violated the order of market transactions, and at the same time, the personal and property rights and interests of the victims were also violated.
Therefore, such behavior must be regulated by criminal law.
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