Basic facts of the case
In October 2023, Zhang found that the efficacy of Tongluo Joint Health Care Liquid advertised on the website of a health care product company was not true, so he reported it to the market supervision department, and the market supervision department filed a case against it.
Wang Moumou, the relevant person in charge of a health care product company, obtained Zhang's contact information through the market supervision department, and negotiated with Zhang through WeChat to withdraw the case.
During the negotiation between the two parties, Zhang asked Wang for 10,000 yuan as a condition for applying to the market supervision department to withdraw the case. After negotiation, the two parties agreed that Wang would transfer 8,000 yuan to Zhang first, and after Zhang applied to the market supervision department to withdraw the case, Wang would settle the remaining 2,000 yuan. Wang then transferred 8,000 yuan to Zhang through WeChat, and Zhang applied to the market supervision department to withdraw the case after receiving the transfer. Wang Moumou immediately chose to call the police, and Zhang was arrested by the police, and all the stolen money involved in the case has been returned to the victim and the victim's forgiveness has been obtained.
Zhang confessed during the interrogation by the public security organs that he found that some merchants falsely advertised the efficacy of their products on the Internet, and at first chose to report to the market supervision department out of a sense of justice, and later found that he could obtain the property given by the merchant in this way, so he began to report to the market supervision department simply for the purpose of obtaining the property.
After review, the procuratorate found that although Zhang's conduct constituted the crime of extortion, the circumstances of the crime were relatively minor, and made a relative decision not to prosecute him.
Core issues
After a complaint or report is filed, how to characterize the act of soliciting property from the other party on the condition of withdrawing the case?
Divergent opinions
The first opinion held that Zhang's conduct did not constitute the crime of extortion. The main reasons are as follows:
1. Zhang's report to the market supervision department after discovering that the health care product company's products were suspected of false propaganda is a public interest anti-counterfeiting act to safeguard the public interest, and does not have the purpose of illegal possession.
2. The withdrawal of the case negotiated by Zhang and Wang was carried out with the knowledge of the market regulation department, and the negotiation between the two parties to withdraw the case has been approved by the market regulation department. Zhang's request for a certain amount of property from Wang Moumou as a condition for applying to the market regulation department to withdraw the case is more similar to a civil dispute resolution method. In this case, on the one hand, the health product company avoided the punishment of the market supervision department, thereby maintaining its goodwill; On the other hand, Zhang not only effectively cracked down on a health care product company's false promotion of product efficacy, but also obtained corresponding rewards. Therefore, Zhang's conduct is less harmful to society than the common criminal acts of extortion, and is an ordinary illegal act or only morally condemnatory, and has not yet reached the need for criminal accountability.
3. Reporting to the market regulation department is a civil right enjoyed by Zhang in accordance with the law, and this right can be freely exercised and waived. In the case that the market regulation department has already filed a case against Zhang's report, Zhang's acquisition of Wang's property in exchange for applying for withdrawal of the case is a waiver of his rights, which is a legitimate act, and should not be punished as a crime.
The second opinion holds that Zhang's conduct constituted the crime of extortion. The main reasons are as follows:
1. Zhang had the purpose of illegal possession. Zhang reported to the market supervision department that a health care product company was suspected of falsely advertising the efficacy of the product in order to illegally obtain property.
2. After Zhang reported to the market supervision department that a health care product company falsely advertised the efficacy of the product, the market supervision department has filed a case against it. In the process of the two parties negotiating to withdraw the case, Zhang demanded property from Wang on the condition of applying for the withdrawal of the case, which constituted sufficient coercion on Wang.
3. Zhang obtained 8,000 yuan of stolen money through coercion, the amount of which met the standard of "relatively large amount" for the crime of extortion in the mainland criminal law. The other 2,000 yuan is an attempted extortion, and should also be included in the scope of the amount involved in the crime of extortion.
Analytical opinions
The criminal law of the mainland adopts a simple criminal model for the crime of extortion, and there is no clear judicial interpretation on the mode of conduct of this crime (1). Scholars have given different definitions and interpretations of what constitutes extortion. The mainstream view is that the so-called crime of extortion refers to the use of threats or coercion for the purpose of illegal possession to force the victim to deliver property, reaching a relatively large amount or extortion multiple times. The basic structure of the crime of extortion (completed) is: threatening others - the other party develops fear - the other party disposes of property based on fear - the perpetrator or a third party obtains property - the victim suffers property losses (2). In conjunction with this case, we carry out the following analysis:
(1) Zhang had the purpose of illegal possession. Zhang confessed during the interrogation by the public security organs that he often encountered some merchants on the Internet who falsely advertised the efficacy of their products, and at first chose to report to the market supervision department out of a sense of justice, and later found that he could obtain property in this way, so he began to report to the market supervision department simply for the purpose of obtaining property. Therefore, there is no problem in determining that Zhang had the purpose of illegal possession.
(2) Zhang's solicitation of property in the course of negotiating with Wang XX on the withdrawal of the case constituted sufficient coercion on Wang XX to cause the other party to develop fear and transfer money to Zhang. The criminal method of extortion is threat or coercion, that is, the method of imposing mental coercion on the owner or custodian of public or private property, causing him to have a certain degree of psychological fear and dare not refuse (3). In this case, Zhang's complaint to the market supervision department against a health care product company for allegedly falsely advertising the efficacy of its products was mainly based on Articles 18(4) and 53(5) of the Advertising Law of the People's Republic of China. Zhang's report to the market supervision department that a health care product company was suspected of falsely advertising the efficacy of its products was exercising his personal rights, which is a right involving social and public interests. If the market supervision department files a case and verifies that it is true, it will lead to adverse consequences for a health care product company. Therefore, in the process of negotiating the withdrawal of the case between Zhang and Wang, Zhang used whether or not to apply for the withdrawal of the case as a bargaining chip to ask Wang for property, which formed a sufficient coercion on Wang.
(3) The market regulation departments allowing Zhang X to negotiate with Wang XX to withdraw the case cannot block the necessity of criminal accountability for Zhang's extortion. In this case, the market regulation department filed a case against a health care product company for falsely advertising the efficacy of its products, in accordance with Article 53 of the Advertising Law of the People's Republic of China(6). In the process of handling the case, the market regulation department allowed Zhang and Wang to negotiate to withdraw the case. Since Zhang did not purchase the Tongluo Joint Health Care Solution product of a health care product company, the two parties did not form a civil legal relationship in a substantive sense. Therefore, it can be determined that Zhang already had the purpose of illegal possession when he reported to the market regulation department, which meets the subjective elements of the crime of extortion. The market regulation department allowed Zhang to negotiate with Wang to withdraw the case, but it cannot block the necessity of criminal accountability for Zhang's extortion.
(4) Zhang's acquisition of Wang's WeChat transfer in exchange for applying for withdrawal of the case is not a waiver of his rights and is not a justified act. In accordance with the relevant provisions of the "Advertising Law of the People's Republic of China", when Zhang reported the suspected false advertising of the efficacy of a health care product company to the market supervision department, he had already fulfilled the right of citizens to complain and report, and after the market supervision department filed a case, the public power had intervened. Even if Zhang applied to the market supervision department to withdraw the case after consulting with Wang, he was still going through the follow-up complaint and reporting procedures.
In summary, Zhang had the purpose of illegal possession when he reported to the market regulation department, and in the process of negotiating the withdrawal of the case between Zhang and Wang, Zhang demanded property from Wang on the condition of applying for the withdrawal of the case, which formed enough coercion on Wang to cause Wang to be afraid and give Zhang property, and the amount had also reached the criminal law's standard of "relatively large amount" for the crime of extortion. Therefore, Zhang's conduct constituted the crime of extortion.
exegesis
(1) At present, the mainland has relatively detailed judicial interpretations on common crimes against property such as robbery, theft, fraud, snatching, and embezzlement. There is only one special judicial interpretation on the crime of extortion, namely the Provisions of the Supreme People's Court on Issues Concerning the Criteria for Determining the Amount of the Crime of Extortion, which does not address the definition and constitutive elements of the crime of extortion.
(2) Zhang Mingkai, Criminal Law (II) (Fifth Edition), Law Press, 2016, pp. 1015-1016.
(3) Wang Zuofu, "Practical Research on the Specific Provisions of Criminal Law", Founder Publishing House, 2006, p. 1173.
(4) Article 18 of the Advertising Law of the People's Republic of China stipulates that "advertisements for health foods shall not contain the following contents: (1) assertions or guarantees indicating efficacy and safety; (2) Involving disease prevention and treatment functions; (3) Claiming or implying that the advertised goods are necessary for the protection of health; (4) Comparison with medicines and other health foods; (5) Using advertising spokespersons to make recommendations or testimonials; (6) Other content prohibited by laws and administrative regulations".
(5) Article 53 of the Advertising Law of the People's Republic of China stipulates that "any entity or individual has the right to complain or report violations of this Law to the market regulation department and relevant departments".
(6) Article 53 of the Advertising Law of the People's Republic of China stipulates that "the market regulation department and relevant departments shall disclose to the public the telephone number, mailbox or email address for accepting complaints or reports, and the departments receiving complaints or reports shall handle them and inform the complainants and informants within seven working days from the date of receipt of the complaints."
Author's Affiliation:The Fourth Branch of Beijing Municipal People's Procuratorate