As an objective social phenomenon, "professional anti-counterfeiting" has long been often used by the media, the public, and government agencies in news reports, academic research and other unofficial documents. The professional anti-counterfeiting system and the consumer rights protection system are accompanied by the emergence of the system, but the boundary between professional anti-counterfeiting and the crime of extortion due to excessive rights protection is easily confused. At present, the damage to the business environment and the obstacle to economic development caused by the anti-counterfeiting of professional counterfeiting are becoming more and more obvious, and the occupation and consumption of administrative resources have also reached a high level. By sorting out the concept and constituent elements of professional anti-counterfeiting behavior, the boundaries between professional anti-counterfeiting and extortion crimes are further analyzed. In the case where a professional counterfeiter constitutes the crime of extortion, the content and purpose of the coercion are doubly unlawful, and the extorted operator must fall into fear due to the coercion of the professional counterfeiter. In addition to the effective containment of professional anti-counterfeiting and the active crackdown on related illegal and criminal acts, it is necessary to carefully analyze and identify the phenomenon of professional anti-counterfeiting, and it is also necessary for the competent departments of various industries, including market supervision departments, public security organs and other departments, to achieve information exchange and action coordination, and establish a long-term mechanism of co-governance and co-management, so as to create a benign business ecology of honest management and trustworthy services.
1. Overview of professional anti-counterfeiting behavior
(1) The development process of professional anti-counterfeiting
In the mainland, professional anti-counterfeiting began in the early 90s of the 20th century. The Law on the Protection of Consumer Rights and Interests, which came into effect on January 1, 1994, for the first time clearly stipulates the punitive damages system of "one refund and one compensation", and Wang Hai also began to enter the historical stage as the "first person to fight counterfeiting professionally". For the first time, the Food Safety Law, passed in 2009, included 10 times the amount of punitive damages. The 2013 revision of the Consumer Rights Protection Law revised the "refund one compensation one" to "refund one compensation three", and clarified that the minimum eligible compensation is 500 yuan, and at the same time added relevant provisions such as compensation for moral damages. The 2015 revision of the Food Safety Law directly stipulates that consumers who are damaged by food that does not meet food safety standards can claim a minimum compensation of 1,000 yuan. In fact, the provisions on the punitive damages system in mainland law are relatively perfect, and the original intention of the legislation is to more effectively protect the legitimate rights and interests of consumers and crack down on a series of illegal business activities that harm the legitimate rights and interests of consumers, such as consumer fraud. However, after the promulgation of these legal provisions, it has virtually made the "sensitive sense of smell" professional anti-counterfeiters become one of the biggest beneficiaries, and the group has developed into an industry group with a considerable scale and relatively "mature" operation mode.
It should be admitted that in the era when professional anti-counterfeiters were just born, this group did play a considerable positive role in arousing the awareness of consumer rights, assisting government functional departments to crack down on illegal operations, and regulating and rectifying market order. However, the development of professional anti-counterfeiting to this day, its trend of specialization, scale and commercialization is becoming more and more obvious, and the professional anti-counterfeiting group is gradually huge, and "anti-counterfeiting companies" have sprung up. At the same time, more and more groups from all walks of life have joined the ranks of professional anti-counterfeiters to get a piece of the pie, the quality of professional anti-counterfeiters is uneven, the means are varied, constantly wandering on the edge of the law, crazy temptation, and the behavior of crossing the legal red line occurs from time to time, which has brought great trouble and burden to the professional anti-counterfeiting groups themselves, operators and even relevant industry authorities.
(2) The concept of professional anti-counterfeiting
As an objective social phenomenon, "professional anti-counterfeiting" has long been often used by the media, the public, and government agencies in news reports, academic research and other unofficial documents. However, it was not until May 2017 that the Supreme People's Court's "Reply to Recommendation No. 5990 of the Fifth Session of the Twelfth National People's Congress" for the first time appeared in writing to "professional anti-counterfeiting", and judging from the full text, the opinion actually expressed "professional anti-counterfeiting" as "knowingly buying counterfeits" and "professional anti-counterfeiters" as "knowingly buying counterfeits". In fact, the "fake" here does not only refer to counterfeit and shoddy goods, but generally refers to all professional anti-counterfeiting products that they believe are defective or defective in the product itself (regardless of whether the actual goods are really defective or defective). In addition, this paper does not standardize the connotation and extension of professional anti-counterfeiting and professional anti-counterfeiting behaviors, nor does it summarize the characteristics of professional anti-counterfeiting behaviors, which shows the controversial nature of "professional anti-counterfeiting" in the practical and academic circles.
The development of professional anti-counterfeiting to this day, despite the continuous growth of its group and the continuous renovation of its means, its behavioral goals, behavior patterns, operating mechanisms and other elements are almost "mature", and a relatively stable systematic operation mode has been formed, which can be said to be unchanged. The author calls it "professional anti-counterfeiting", or "professional reporting" and "professional claims" (strictly speaking, most of the currently active professional anti-counterfeiting behaviors have been alienated into purely procedural behaviors that are rewarded or compensated by reporting, and the "Wang Hai-style" professional anti-counterfeiting that began to flourish in the early 90s of the 20th century and paid more attention to the products and services themselves has become popular, so the author believes that it should be called "professional reporting" or "professional claims"). However, in order to be consistent with the general social perception that has been formed for a long time, this article still uses the terms "professional anti-counterfeiting" and "professional anti-counterfeiter". It refers to the profit-making purchase or reporting behavior of selecting and purchasing goods that the business operator believes to be defective or defective in quality for the purpose of obtaining compensation from the business operator or a material reporting reward from the government regulatory department, and then claiming compensation from the business operator on the grounds that the purchase and use of the product has caused damage to its own rights and interests, or reporting to the government regulatory department and requesting payment of a reporting reward.
2. Constituent elements of professional anti-counterfeiting acts
There are various manifestations of professional anti-counterfeiting behavior, but its behavior pattern can be summarized into four constituent elements: the subject, the subjective purpose, the object of implementation, and the objective behavior.
(1) Implementing entities - natural persons who are professional anti-counterfeiters
The main body of the implementation of professional anti-counterfeiting, i.e., the professional anti-counterfeiter, is a natural person who specifically implements professional anti-counterfeiting acts, and then claims compensation from the operator or reports to the government regulatory department and requests a reward for reporting by purchasing products that he believes to be defective or defective by purchasing or using products that he believes to be defective or defective.
1. Exclusion of professional anti-counterfeiters of legal persons
Most of the ways for professional anti-counterfeiters to make profits are to purchase consumer goods in the name and identity of ordinary consumers, and initiate complaints and reports on the grounds that the purchased goods have quality problems, and then obtain compensation or reporting rewards. The main basis for the claim of professional anti-counterfeiters is Article 55 of the Law on the Protection of Consumer Rights and Interests and Article 148 of the Food Safety Law on punitive damages, and in order to apply the above legal provisions, it must be a qualified entity, that is, a "consumer" who purchases or uses goods or receives services "for daily consumption needs". In the initiation of the complaint and claim procedure, it is also necessary for professional anti-counterfeiters to purchase and use goods or receive services in the name of "consumers" "for daily consumption needs". Therefore, when a professional anti-counterfeiter complains to the market supervision department, he will emphasize at the beginning of the complaint that he has purchased the product "for the needs of life", and the complaint is carried out in his or her own name.
As a legal person, a legal person is a kind of social organization, the purpose of its establishment is to engage in business activities and obtain profits (for-profit legal person), for public welfare purposes or other non-profit purposes (non-profit legal person) or to undertake administrative functions (organ legal person), etc., and its way of existence is to engage in civil activities, and it does not have the unique "living needs" of natural persons, so legal persons do not have the main qualification to carry out professional anti-counterfeiting, and only natural persons (or in the name of natural persons) can be called "professional anti-counterfeiters" and carry out professional anti-counterfeiting acts. However, this does not mean that legal persons cannot play any role in the professional anti-counterfeiting group and the professional anti-counterfeiting process. Some large-scale professional anti-counterfeiting groups have registered and established business entities such as "advertising companies", "business consulting companies", "legal consulting companies" and "inspection and testing companies", and hired professionals or practitioners in specific industries as "consultants" to provide informational, legal, technical and other consulting services for professional anti-counterfeiters, and provide "assistance" for the "wrestling" process between professional anti-counterfeiters and operators and government functional departments, which has played a very important role in the process of professional anti-counterfeiting.
2. Consumer identification of professional anti-counterfeiters
Professional anti-counterfeiters not only purchase goods from operators in the name and capacity of consumers, but also claim compensation from operators and complain to government regulators in the name and capacity of consumers. Whether the professional anti-counterfeiter is a consumer in the true sense shall be determined in accordance with the actual situation. The concept of "consumer" is subject to different legislative regulations in other countries and regions.
The first is the legislative model of reverse exclusion. For example, Article 2 of the Consumer Contract Law of Japan stipulates that a consumer is a natural person who has concluded a contract for the purpose of business other than business. Article 13 of the Germany Civil Code states: "A consumer is any natural person who enters into legal acts for purposes neither for his or her profit-making activity nor for the purpose of his or her independent professional activity." The EU E-Commerce Directive, the Consumer Telefinance Directive and the Consumer Credit Directive define a "consumer" as "a natural person who purchases goods or receives services for purposes other than his or her trade, business or profession".
The second is the model that directly expresses the concept of consumers. For example, the Federal Law on the Protection of Consumer Rights of the Russia Federation defines "consumer" as "a citizen who uses, obtains, customizes, or has the intention to acquire or custom-order goods (work, services) for personal needs." United States Uniform Commercial Code states: "A consumer is an individual who purchases goods for personal, family or household purposes".
The third is the hybrid legislative model. For example, the Australia Consumer Law provides that "a consumer is an individual who purchases goods or services of any type for a total amount not exceeding $40,000 (or any other amount under the Australia Consumer Law); goods or services with a total value of more than $40,000, which are normally for personal or household use only". At the same time, it is also stipulated that if the purchaser resells the goods or services after obtaining them and then re-entering the circulation field, they do not belong to the consumer.
Before the promulgation of the Law on the Protection of Consumer Rights and Interests in the Mainland, there were different theories on the definition of consumer, and the consumer protection regulations promulgated in various places also had different definitions of consumers. Article 2 of the Law of the People's Republic of China on the Protection of Consumer Rights and Interests stipulates that: "The rights and interests of consumers who need to purchase or use goods or receive services for daily consumption shall be protected by this Law; Where this Law does not provide for it, it is protected by other relevant laws and regulations. Although this article does not directly express the concept of "consumer", it summarizes the conditions that need to be met by the consumer protection law (consumers) and the prerequisites for the application of the law, according to which a consumer is a person who purchases or uses goods or services provided by business operators for daily needs. This definition has the following three meanings:
First, consumers are natural persons who purchase or use goods or receive services, and consumers can only be natural persons and cannot be legal persons or other social organizations. The reason is that the legislative purpose of the Consumer Rights Protection Law is to protect the safety of people's daily consumption process, safeguard their legitimate rights and interests, and protect the "economically weak" is the original legislative intention of the Consumer Rights Protection Law. Only natural persons can become the subject of terminal consumption, legal persons and other organizations are not economically weak, and once a dispute arises between the two parties, it can be handled in accordance with the civil law and relevant special laws that regulate the legal relationship between equal subjects. Legal persons and other organizations that are aggregates of natural persons do not themselves have the qualifications of consumers, but their members or employees are still within the scope of consumers as natural persons. Compared with operators, due to the asymmetry of information between the two parties and the asymmetry of their status, consumers are naturally in an all-round disadvantaged position. As consumers, natural persons should not be affected by conditions such as ethnicity, race, gender, occupation, family origin, religious belief, education level, property status, and social status. In fact, limiting consumers to natural persons does not deny that legal persons and other social groups and organizations can seek remedies through other statutory means when their rights are infringed, but that the Consumer Rights and Interests Protection Law, as a special law, does not protect all members of society, but the legitimate rights and interests of consumers.
Second, the goods purchased and used by consumers and the services they receive are provided by the operators. A person is a consumer of goods or services provided by others when he buys or uses them for the needs of his life, and he is a business operator when he provides them to others for profit. Consumers include not only those who purchase goods or services, but also those who use goods or receive services. However, goods used as consumers should be produced and manufactured by others, not by themselves. For example, farmers harvest their own rice and cook it into rice for their own consumption, and they are not consumers of these rice. As a consumer, the goods and services consumed by the consumer are obtained by himself or others from the operator in a certain way. "Certain means" usually refers to the payment of the price of purchase, but it is not limited to purchase, the goods and services obtained by the operator by paying any form of material consideration (such as providing convenience, labor, etc.) should also belong to the consumer, and even the user of the goods or services donated by the operator without paying any consideration should also belong to the consumer.
Third, consumers are people who carry out life consumption activities. Since consumers are not a fixed class or group, the meaning of consumers is strictly temporal, that is, anyone is a consumer only when they are engaged in their consumption activities. However, this "consumption activity" does not only refer to the moment of consumption (purchasing goods, using products, receiving services), but also includes preparatory activities for daily consumption (inquiring about product information, understanding product performance, comparing products, etc.) and the entire cycle of after-sales service. The connotation of "living consumption" should be determined in accordance with the principle of consistency between subjectivity and objectivity, that is, in order to "meet material and cultural needs", consumers subjectively understand and believe that the purchase, use, and service are for the purpose of their own or others' (relatives and friends') daily consumption, and objectively carry out the behavior of purchasing and using goods or receiving services, so as to meet their own or others' (relatives and friends') specific unproductive material or spiritual needs. If a person purchases commodities that are generally used for daily life, but directly uses them for business activities, in the course of this transaction, he should not be recognized as a consumer, but as a business operator, and the purchase behavior is not a living consumption, but a production consumption.
Consumers are a kind of legal subject opposite to business operators, and they are an open social role, rather than a prescriptive social role, and the behavior, behavioral norms and standards of such social roles are not strictly and clearly stipulated. As for professional anti-counterfeiters, the determination of whether they meet the open social identity of "consumers" should not be generalized, but should be comprehensively judged from the specific circumstances of the goods purchased in the process of professional anti-counterfeiting, the specific behaviors carried out and the roles they play. For example, a professional anti-counterfeiter buys a box of 10-piece facial masks with a shelf life of three years from the operator, and after receiving the goods, he requires the operator to bear the punitive liability of "refund one and compensate three" on the grounds that the mask has expired. Under such circumstances, it is reasonable for a professional anti-counterfeiter to purchase a mask in a normal amount according to the normal use of the mask, determine that it is a consumer, and apply the relevant punitive damages provisions of the Consumer Rights Protection Law to compensate him. However, if a professional anti-counterfeiter purchases 1,000 boxes of 10-piece facial masks with a three-year shelf life from the operator at one time, judging from the number of purchases, according to the normal usage and dosage of the mask, it obviously exceeds the scope of rational "life needs", and it is not appropriate to determine its consumer identity at this time, nor should it apply the relevant remedies of the Consumer Rights Protection Law to protect it. In another example, a professional anti-counterfeiter found that a bottle of drink sold on a supermarket shelf had expired, and when he could choose the same drink that had not expired, he used video recording equipment to record the whole purchase process, and still purchased the expired drink. At this time, because he knew that there were quality problems in the purchased goods in the process of purchasing the goods, and when he could choose the qualified goods independently, he still purchased the problematic goods and videotaped the purchase process, and his purchase behavior was obviously not "consumption for daily life" (buying expired food knowing that it was "self-harm behavior", contrary to the instinct of normal rational people to seek benefits and avoid disadvantages), but to claim compensation against the operator through the purchase of expired food, so as to achieve the purpose of making profits. The above-mentioned behavior of professional anti-counterfeiters does not conform to the consumption logic of normal consumers for the purpose of daily consumption, so in this case, their consumer identity should not be determined, and the relevant provisions of the Consumer Rights and Interests Protection Law should not be applied to provide relief to them.
To sum up, in the process of administrative management and administrative law enforcement, whether to identify the consumer identity of professional anti-counterfeiters and apply relevant protective legal provisions to pay attention to their claims depends on multiple factors such as the use, quantity and specific characteristics of the purchase of the goods they purchase, and cannot be generalized.
(2) The subjective purpose of professional anti-counterfeiting - profit
The most essential difference between professional anti-counterfeiting behavior and general consumption purchase behavior is the difference in subjective purpose. The general life purchasing behavior of ordinary consumers is "to meet the needs of material and cultural life", that is, to meet their specific unproductive material or spiritual needs by purchasing goods and using them. For example, buying clothing to meet the needs of "clothing"; buy food or go to restaurants to meet the needs of "food"; Buying commercial housing or renting apartments to meet the needs of "housing"; Take public transport or buy a family car to meet the needs of "travel". The daily consumption and purchase behavior of ordinary consumers is affected by various factors such as their living habits, consumption habits, product price, appearance, quality, performance, grade, and evaluation of others, and the purchase behavior is highly selective and random.
The purchase of professional anti-counterfeiting is the sole purpose of obtaining compensation, reporting rewards and other material financial feedback, which is essentially an act of seeking benefits, and the goods purchased by professional anti-counterfeiters are only a tool for them to claim compensation. Therefore, the professional anti-counterfeiter does not pay much attention to the performance, quality and other elements of the target product itself (because it is likely not to use the product), but only pays attention to the claim value of the product (price, seller, quality problems), and the purpose and direction of the purchase behavior are strong.
The only purpose of the professional anti-counterfeiter to buy goods is to ask for compensation or report rewards to make profits, and their purchase behavior is only a means of making profits, which is a part of their professional anti-counterfeiting procedures, not the terminal consumption behavior, and the final destination of the purchased goods is often to return the goods, or be abandoned by the professional anti-counterfeiters, etc., of course, it is not the final link in the process of social reproduction.
(3) The object of professional anti-counterfeiting conduct
The object of professional anti-counterfeiting acts refers to the counterparty that is directly influenced by the implementation of professional anti-counterfeiting acts, including three categories: counterparties, objects, and social relations.
1. Counterpart
The counterparts in the object of professional anti-counterfeiting mainly include business operators and market supervision departments, and indirect counterparts also include ordinary consumers.
Business operators are the most important objects directly targeted by professional anti-counterfeiting activities. A professional anti-counterfeiter who purchases goods from the operator and makes reasonable or unreasonable compensation claims against the operator is the only counterpart that must appear in the process of professional anti-counterfeiting. This is because if there is no purchase from or from a business operator, there is no person to claim compensation.
The market supervision department is a role that is not necessary in the process of professional anti-counterfeiting. After purchasing goods from operators, professional anti-counterfeiters can choose to complain and report to the market supervision department and ask the market supervision department to handle their complaints and reports in accordance with the law, which is actually using the market supervision department to put pressure on the operator, so as to achieve the purpose of obtaining compensation from the operator. At this time, the market supervision department is the object of professional anti-counterfeiting.
In fact, professional anti-counterfeiters can also choose to skip the market supervision department, do not complain and report to them, and directly file a claim with the operator after purchasing the goods. This is also the situation where professional anti-counterfeiters are most likely to cross the red line in the process of professional anti-counterfeiting, constituting the crime of extortion. Because without the intervention and supervision of the market supervision department, the "boldness" of professional anti-counterfeiters has become bigger, and driven by interests, they have made unreasonable claims for compensation to operators, and even opened their mouths. The means of compensation have also begun to gradually "blacken", and threats, intimidation, coercion and other means are easy to slip into the quagmire of "black eating black", and eventually constitute criminal acts.
2. Subject matter
The subject matter in the object of professional anti-counterfeiting refers to the goods purchased by the professional anti-counterfeiter from the operator to achieve the purpose of its claim. The subject matter is the commodity directly directed by the professional anti-counterfeiting behavior, the carrier that carries the rights and obligations of the professional anti-counterfeiting and the operator's sales contract, and is also the connection point between the two. The subject matter of the professional anti-counterfeiting commodity is purchased by the professional anti-counterfeiter and is intended to be used to initiate the punitive damages system to claim compensation, and this type of commodity has the following characteristics:
(1) The price is low or high
Because the funds for the purchase of the subject goods are paid by the professional anti-counterfeiters, and in order to prevent the business operators from identifying their professional anti-counterfeiters at the time of purchase, the price of the subject goods must usually be paid by the professional anti-counterfeiters in advance "normally". Therefore, in order to avoid large economic losses due to the operator's reluctance to compensate or the failure to claim compensation for other reasons, the price of some of the commodities selected by the "retail" professional anti-counterfeiters is low, mostly ordinary pre-packaged food and daily necessities below 50 yuan or even 10 yuan. The operators who sell such goods are mainly small and medium-sized enterprises, and they do not know much about the relevant laws and regulations involved in the professional anti-counterfeiting.
The subject matter chosen by the group professional anti-counterfeiter is more expensive. Because most of these professional anti-counterfeiters have a more professional "technical support" team, the identification of defects or quality problems in the subject goods is more accurate, and the success rate of claims is higher. Therefore, in order to maximize the value of the claim and leverage higher compensation, the goods purchased by such professional anti-counterfeiters often include imported food or health care products with a unit price of thousands of yuan. Once the problem with the product is confirmed, the claim amount will even be as high as tens of thousands of yuan. However, due to the large amount of goods involved in this kind of professional anti-counterfeiting behavior, operators generally do not compromise easily, and often have to go through multiple procedures such as complaints and reports, administrative penalties, and reconsideration lawsuits.
(2) Concentration of commodity types
Because the purpose of professional anti-counterfeiting is to make a claim, and the premise of the claim is that the purchased goods have defects or quality problems, in the current mainland industry-wide product quality and production and business activities standardization has been significantly improved, in fact, the space left for professional anti-counterfeiters to exert has been relatively narrow. At present, the more active purchase areas of professional anti-counterfeiters are mainly concentrated in food, daily chemical products, clothing and other commonly used consumer goods, the price of such goods is moderate or low, the number of operators is huge, the market competition is sufficient, the product category is rich, the base is large, and the "resources" of professional anti-counterfeiting are relatively rich.
3. Social relations
From a formal point of view, professional anti-counterfeiting behavior is a consumer dispute caused by an ordinary commodity sales contract between a consumer and a business operator, and then initiates self-remedies or administrative relief measures.
(1) The contractual relationship between the professional anti-counterfeiter and the operator
In essence, the property relationship between a professional anti-counterfeiter and a business operator is a property relationship between a natural person and a legal person (or natural person) who are equal subjects, which is specifically manifested in the sales contract relationship, that is, a contract in which the seller (operator) transfers the ownership of the subject matter (commodity) to the buyer (professional anti-counterfeiter) and the buyer (professional anti-counterfeiter) pays the price. Different from the general sales contract, the purpose of the contract between the two parties to the sales contract between the professional anti-counterfeiter and the operator is not the same. Generally, the parties to a sales contract that conform to the principle of good faith uphold the principle of good faith of "one hand to pay the money, the other hand to deliver the goods" and "the money and goods are cleared", and after the ownership of the subject matter of the contract and the corresponding price paid are transferred, the purpose of the contract is realized, that is, the seller obtains the price and the buyer obtains the ownership of the subject matter.
However, in the sales contract between the professional anti-counterfeiter and the operator, even if the ownership of the subject matter of the contract and the corresponding price paid are transferred to the place, the purpose of the contract is not fully realized. In this sales contract, although the professional counterfeiter obtains the ownership of the subject matter after paying the price, its purpose is not limited to this, and it will also require the operator to bear the liability for breach of contract on the grounds that the subject matter is defective and the operator's performance of contractual obligations does not conform to the agreement.
It is worth noting that although the two parties to the general sales contract will also bear the corresponding liability for breach of contract due to the breach of contract by one party, the occurrence of such liability for breach of contract is uncertain and contrary to the purpose of the contract of both parties to the contract in good faith, that is, both parties to the contract aim to achieve the original purpose of the sales contract (money and goods transaction), and have a negative attitude towards the occurrence of liability for breach of contract. For example, rational ordinary consumers buy a TV from an e-commerce platform, the purpose of their purchase is to hope that the TV is of excellent quality, the audio and video function is intact, and it can be used for normal viewing, and they do not want the seller to bear the liability for breach of contract after the TV fails, and provide consumers with "seven days no reason to return" or "direct replacement" and other "looks beautiful" after-sales service guarantees.
In the sales contract between the professional anti-counterfeiter and the operator, the professional anti-counterfeiter has foreseen and actively pursued the breach of contract by the operator and assumed the liability for breach of contract, because only if the operator has quality problems that meet the "expectations" of the professional anti-counterfeiter due to the quality problems of the goods sold, the operator will bear the liability for breach of contract, and the professional anti-counterfeiter can obtain punitive damages as desired. It should be said that this attitude of actively pursuing liability for breach of contract is contrary to the principle of good faith in civil activities.
(2) The administrative relief relationship between professional anti-counterfeiters and market supervision departments
As the buyer in the sales contract, the professional anti-counterfeiter is the nominal "consumer". Procedurally, the formal logic of its claim that it complained and reported to the market regulation department due to the damage to its legitimate rights and interests caused by the purchase of goods, and requested the market regulation department to handle its claims in accordance with the law. However, as mentioned above, when the goods purchased by professional counterfeiters clearly exceed the daily consumption needs of ordinary rational consumers, the identity of the consumers is in a state of doubt. Therefore, the rights and interests of the professional anti-counterfeiter at that time were not damaged due to the reason for the sale of goods by the operator, and when the market supervision department accepted the complaint and report in accordance with the relevant laws and regulations, it initiated the relief and protection measures for ordinary consumers, and once the procedure was initiated, it must be implemented to form a closed loop. In areas with a high proportion of professional anti-counterfeiting, the complaints and reports initiated by professional anti-counterfeiters even account for more than 50% of all complaints and reports. Due to the profit-making nature of the professional anti-counterfeiting act, the purpose of the professional anti-counterfeiter to initiate a complaint and report is not to seek administrative remedies to protect its legitimate rights and interests, but to use the market supervision department to exert pressure on the operator, so as to obtain punitive damages from the operator. Therefore, professional anti-counterfeiters will take advantage of the procedural flaws in the handling of complaints and reports by the market supervision department to put pressure on the market supervision department, and then the market supervision department will put pressure on the operator, so as to achieve its profit-making purpose of obtaining punitive damages. In fact, the handling of complaints and reports initiated by professional anti-counterfeiters has encroached on and consumed too much time and energy of the market supervision department, which may lead to the reasonable demands of ordinary consumers who really need to protect their rights cannot be dealt with in a timely manner.
(3) The conversion relationship between professional anti-counterfeiters and ordinary consumers
From the essence point of view, the professional anti-counterfeiter is also a consumer in form and name, but in the case of some abnormal purchase of goods mentioned above, the professional anti-counterfeiter belongs to "the name of consumption, but not the reality of consumption", this "nominal and substantial" does not mean that it has no consumption behavior, but refers to the purchase behavior of professional anti-counterfeiters breaks through the "consumption demand" of ordinary consumers, does not conform to the consumption logic and behavior of a real consumer, and is not a "consumer" that should be protected by the Consumer Rights Protection Law. That is to say, under the condition of normal and reasonable consumption, even if it subsequently takes remedial measures such as complaints and reports to claim for profit, it cannot deny the nature of its purchase itself and its own consumer identity. However, when their purchasing behavior clearly exceeds ordinary normal consumer demand, the purpose of making profit is prominent, and there is no reasonable "infringed consumer rights", the consumption attribute of their purchasing behavior and their own consumer identity should not be determined.
That is to say, the identities of professional anti-counterfeiters and ordinary consumers are transformed with the difference of specific consumption and purchase behaviors, but the two are not completely mutually exclusive, and the identities of professional anti-counterfeiters and consumers can be either selective or mixed. When the two are chosen, the professional anti-counterfeiter is not recognized as an ordinary consumer, or a professional anti-counterfeiter or an ordinary consumer; When the two are mixed together, they are both ordinary consumers and professional anti-counterfeiters, and they meet the conditions of the two at the same time.
(4) The administrative management relationship between the operator and the market supervision department
As far as business operators (market entities) are concerned, the market regulation department is both a registration department and a regulatory department, and the market regulation department supervises the legality of the business activities of the business operators within the scope of its responsibilities ex officio, and handles complaints and reports against the business operators. In both the registration and supervision process, the business operator is in the position of the administrative counterpart, while the market supervision department is the administrative entity.
In the process of handling complaints from professional anti-counterfeiters against business operators, the professional anti-counterfeiters shall initiate an application for a complaint against the operators to the market supervision department, and the market supervision department shall make a decision on whether to accept or not accept the complaint of the professional anti-counterfeiter ex officio. If the complaint meets the statutory conditions and does not have the circumstances of inadmissibility, it shall be accepted, and if both the professional anti-counterfeiter and the operator agree to mediation, it shall be handled by organizing mediation. The mediation is an administrative mediation, the mediation organizer market supervision department does not impose rights and obligations on either party of the operator or the professional anti-counterfeiter, and the result of the mediation is not binding on both parties, before mediation, both parties can voluntarily choose to accept or not accept mediation according to the principle of autonomy of will. If you accept mediation, you can also refuse to continue mediation at any time during the mediation process, and both parties have no obligation to perform the mediation results. Therefore, in the process of organizing consumer mediation between professional anti-counterfeiters and operators, the market regulation department does not have a specific administrative act, and it does not have the relationship between administrative management and management, and it does not have the characteristics of an administrative subject at this time, and the operator does not have to perform the obligations of its administrative counterpart, and the operator can choose to accept the mediation organized by the market regulation department or choose to refuse.
However, when the market supervision department handles the report submitted by the professional anti-counterfeiter, it has a typical relationship between the administrative subject and the administrative counterpart between the market supervision department and the reported operator. After conducting an investigation and verification of the reported leads, if the relevant statutory requirements for filing a case are met, the market regulation department shall conduct an investigation of the reported business operator and inform the informant of the decision to file a case. At this time, the market supervision department, as the administrative body, is in two sets of administrative-legal relationships at the same time, and has two administrative counterparts at the same time, one is the operator who is under investigation by the operator, and the other is the professional anti-counterfeiter who reports the operator to it. In the process of filing the case, the business operator enters the administrative penalty procedure and becomes a party to the administrative penalty case, and the professional anti-counterfeiter enters the market supervision and management report handling procedure and becomes the whistleblower. At this time, the operator is obliged to cooperate with the investigation of the market regulation department, and has the right to file an administrative reconsideration and administrative lawsuit when the market regulation department makes a penalty decision; Professional anti-counterfeiters shall perform the obligations of informants, provide specific clues to the market regulation departments on suspected violations of laws, regulations, and rules on market regulation and regulation, be responsible for the authenticity of the content of the report, and enjoy the right to file an administrative reconsideration and administrative lawsuit when the market regulation department fails to inform them of the decision on whether to file a case.
It should be noted that in the process of handling the above-mentioned reporting clues, professional anti-counterfeiters (informants) can only enjoy the rights of administrative reconsideration and administrative litigation when the market regulation department fails to reply to inform them of the decision after making a decision to file or not to file a case, but does not have the right of administrative reconsideration and administrative litigation on whether the market regulation department has filed a case, whether it has imposed an administrative penalty after filing a case, and what kind of administrative punishment it has imposed. This is because Article 6 of the Administrative Reconsideration Law and Article 12 of the Administrative Litigation Law specifically enumerate the circumstances under which an application for administrative reconsideration or an administrative lawsuit may be filed. In the report of the professional anti-counterfeiter to the operator, the object of the report is the illegal act of the operator who is suspected of violating the law and should be punished with administrative punishment, that is, the behavior of the subject of the report is made by the operator, the object of investigation is also the operator, and the object of the final punishment is also the operator. In the course of the case investigation, the professional anti-counterfeiter is only the provider of clues, and after the market supervision department files a case and investigates the case based on the reported clues, the final administrative punishment or non-punishment decision is made by the reported operator, and the final administrative punishment is also the operator. Therefore, in this process, regardless of whether the market supervision department files a case for its reporting clues, whether it imposes an administrative penalty after the case is filed, and what kind of administrative punishment is imposed, it will not increase the obligation of the professional anti-counterfeiter (whistleblower), and will not "infringe" the legitimate rights and interests of the professional anti-counterfeiter, so in this case, the professional anti-counterfeiter has no right to apply for administrative reconsideration and administrative litigation.
(4) Objective conduct of professional anti-counterfeiting
The professional anti-counterfeiting is an organic whole connected by a series of practical behaviors, and each behavior has causality and coherence before and after, but the order between some behaviors can be reversed.
1. Purchase of goods
The beginning of the professional anti-counterfeiting procedure is the purchase of goods, and the professional anti-counterfeiter purchases what he considers to be "problematic goods" in order to initiate follow-up complaints, reports and claims against the operator. An important difference between professional anti-counterfeiters and ordinary consumers is that they only buy goods and do not accept services. The reason for this is that purchases are recoverable, while receiving services are not. The purpose of professional anti-counterfeiters is to make profits by asking for compensation, reporting rewards and other material feedback, and to pay less or no material and non-material costs in the process of realizing profits. After purchasing the goods, even if the claim is ultimately unsuccessful due to various reasons, they can return the goods through a series of return, exchange and refund systems that are beneficial to consumers, such as seven-day no-reason returns, and obtain a refund, without paying funds or other costs, and "leaving the whole body" without any impact on their own rights and interests.
In the case of receiving services, the professional anti-counterfeiter must personally accept the specific service, and according to the characteristics of the service, as long as the service is completed, there is no possibility of "return". There will be various uncertainties in the process of receiving services, and some will even cause personal injury to the recipients, so usually the "professional anti-counterfeiters" we talk about are claiming compensation after purchasing goods. However, the act of seeking compensation from a service provider on the grounds of personal or property damage in the process of receiving services is usually determined to be an act of "touching porcelain", which is not within the scope of this article, so it will not be repeated here.
2. Requesting compensation from the operator or applying to the market regulation department for reporting rewards
Claims are the core of professional anti-counterfeiting activities, and the purpose of professional anti-counterfeiting activities is to carry out all kinds of behaviors in the process of professional anti-counterfeiting.
(1) Claim compensation from the operator
Seeking compensation from operators is the most common and important way for professional anti-counterfeiters to make profits, and it is a profit-making way that has always accompanied the development of professional anti-counterfeiting activities since its emergence and has always existed, and it is also the most likely to be suspected of extortion. The most important basis for professional anti-counterfeiters to claim compensation from business operators is the "three-price punitive damages system" in the field of general consumer goods as stipulated in Article 55 of the Consumer Rights and Interests Protection Law, and the "ten-price punitive damages system" in the field of special consumer goods such as food and drugs as stipulated in Article 148 of the Food Safety Law. Because the above two systems clearly stipulate the relevant compensation amount, and even limit the minimum compensation amount under certain conditions, these two systems have been used to the extreme by professional anti-counterfeiters.
In essence, the professional anti-counterfeiter is exercising the "right of claim" among the nine basic rights of consumers, and the right of claim is a right of claim in nature, and the premise of exercising this right is "personal and property damage due to the purchase or use of goods or services", and if it wants to claim punitive damages of three times the price, it is also necessary to meet the "fraudulent behavior" of the operator in the process of providing goods or services. Whether a professional anti-counterfeiter has such a premise in the process of claiming compensation shall be specifically analyzed according to his purchase behavior and the different circumstances of the goods purchased.
If the goods purchased by the professional anti-counterfeiter are not opened and unused, they will file a claim with the operator after receiving the goods, and at the same time file a complaint with the market supervision department, and during the period when the market supervision department handles the complaint, the goods have been returned and refunded and they have received the return payment, at this time, the professional anti-counterfeiter and the operator are in a state of "money and goods", and they have not "suffered personal and property damage", and they cannot exercise their right to claim, that is, they have no right to claim compensation from the operator.
If the goods purchased by the professional anti-counterfeiter have been opened and used after receiving the goods, and the professional anti-counterfeiter claims compensation on the grounds of so-called "personal and property damage" suffered during use, it is necessary to prove to the operator the actual existence of the damage suffered, and if the damage exists, the operator may be required to compensate.
If the goods purchased by the professional anti-counterfeiter are not opened, unused and have not been returned for refund after receiving the goods, and the goods themselves have no quality problems, and they only claim compensation on the grounds that they were "fraudulent" when purchasing the goods, so the professional anti-counterfeiters have obtained the ownership of the goods, the operators have received the money indicated or agreed in advance, the commodity sales contract has been completed, and neither party has "suffered property losses", then it has no right to claim compensation from the operators.
If the operator has committed fraud as stipulated in the Measures for Punishment of Infringement of Consumer Rights and Interests in the course of the transaction with the professional anti-counterfeiter, and the professional anti-counterfeiter has indeed caused personal and property damage as a result of the transaction, it has the right to claim compensation from the operator, and can apply the "three-fold punitive damages system" and the "ten-fold punitive damages system" to obtain corresponding punitive damages.
(2) Apply to the market supervision department for a reward for reporting
Applying for a reward for reporting is another way for professional anti-counterfeiters to make profits, and there are two ways for professional anti-counterfeiters to apply for a reward for reporting to the market supervision department. First, after complaining and reporting the operator, the market supervision department is required to investigate and deal with the reporting clues in the process of handling the complaint and report between it and the operator, and request the payment of a reward for the report. The second is not to complain to the operator, directly report its illegal acts, and require the market supervision department to give a reward for reporting after filing a case for investigation and punishment. Regarding the reward for whistleblowing, the "Interim Measures for Rewarding Whistleblowing of Major Illegal Acts in the Field of Market Regulation" and the "Measures for Rewarding Reporting of Food and Drug Violations" have detailed provisions on this, although the scope and content of the two normative documents on whistleblowing rewards are different, but they have made similar provisions on the conditions for obtaining whistleblowing rewards, which can be summarized into the following three points: first, there is a clear object to be reported and specific illegal facts or clues of illegal crimes, and key evidence is provided; second, the content of the report was not grasped by the law enforcement agencies in advance; Third, the content of the report has been investigated and closed by the law enforcement department and has been administratively punished, or transferred to the judicial organ in accordance with the law to be investigated for criminal responsibility. At the same time, similar provisions have been made for the circumstances under which rewards are not awarded, which can be summarized into the following five points: first, reports by law enforcement staff or personnel with statutory supervision and reporting obligations (i.e., supervisors are not rewarded); (2) the report of the infringed party and its authorized agent or interested party (i.e., the infringed party will not be rewarded); the third is the report of the perpetrator of the violation (except for the internal whistleblower) (i.e., self-reporting is not rewarded); Fourth, there is any evidence to prove that the whistleblower has received any form of remuneration or reward from other market entities for the whistleblower (i.e., the hired whistleblower is not rewarded); Fifth, there are defects in labels and instructions that do not affect the quality and safety of products and will not mislead the public (that is, there is no reward for reporting defects). Obviously, the focus of professional anti-counterfeiters is precisely "the defects in the labels and instructions that do not affect the quality and safety of the products and will not mislead the public". Therefore, it is more difficult for professional anti-counterfeiters not to be excluded from the situation where they can receive rewards for reporting in the process of complaint and reporting.
Compared with asking for compensation from the operator, the procedure is more cumbersome, the conditions are more stringent, and the time to obtain is longer, so this method occupies a secondary position in the profit-making process of professional anti-counterfeiters.
III. Definition of the crime of extortion constituted by professional anti-counterfeiting acts
At present, the professional anti-counterfeiting has almost become a simple profit-making behavior, and the "anti-counterfeiting" has gradually drifted away, how to obtain the highest compensation in the shortest time is the ultimate goal of the professional anti-counterfeiting group. It is precisely because of this profit-making purpose that the means and methods of professional anti-counterfeiting are getting closer and closer to the legal and moral edges. In order to obtain compensation and rewards, more and more professional anti-counterfeiters have begun to use abnormal reports, complaints, administrative reconsiderations, administrative lawsuits and other means, and even fabricated facts, concealed the truth, created rumors and other means to intimidate and threaten business operators to force them to pay high compensation. The use of threats to make claims has been widely used in the professional anti-counterfeiting group, and many professional anti-counterfeiters have been sentenced to criminal punishment for constituting the crime of extortion, but the threat and coercion claims are still intensifying.
So whether professional anti-counterfeiting can constitute the crime of extortion, what are the conditions for it, and where is the boundary between crime and non-crime, these are all issues that need to be clarified.
(1) An overview of the crime of extortion
1. The concept of the crime of extortion
The crime of extortion refers to the act of threatening (intimidating) others, demanding a relatively large amount of public or private property, or extorting money for the purpose of illegal possession. The crime of extortion is a typical crime against property, and the basic structure of the crime is as follows: the perpetrator coerces (intimidates) the other party - the other party develops fear - the other party disposes of the property based on fear - the perpetrator or others obtain the property - the victim suffers property losses.
2. The criminal composition of the crime of extortion
(1) The basic constitutive elements of the crime of extortion
The constitutive elements of the crime of extortion are: 1. the use of coercion, 2. coercing the other party to make them fearful, and 3. the other party delivering property based on the fear of being coerced. Extortion refers to the act of using a certain amount of violence or coercion (intimidation) on the other party to demand that the other party dispose of property. However, robbery is committed if the violence or threat of violence is sufficient to suppress resistance.
(2) "Coercion" in the crime of extortion
Coercion refers to threatening others with unlawful harm to cause them to have a fear of it, and expressing their intention based on such fear. Coercion in the crime of extortion refers to the use of evil to make the other party fearful. Coercion occupies a central position in the composition of the crime of extortion, and is the most significant feature of the crime of extortion that distinguishes it from the crime of robbery, fraud, robbery, theft and other crimes of extortion of property. The practice and theory of criminal law in various countries of the world have different provisions on coercion in the crime of extortion.
There is a process of change in United Kingdom criminal law theory regarding the identification of coercion in the crime of extortion. At the beginning of the 19th century, the common law of United Kingdom did not distinguish between legal and illegal means when determining whether the perpetrator constituted the crime of extortion. During this period, the main basis for judging whether the perpetrator has established the crime of extortion is the object of the perpetrator's crime, as long as the perpetrator believes that he is taking back his own property, that is, he only requires the actor to believe that he is not "illegally possessing for the purpose", then whether he or she threatens by lawful means or illegal means, it is a legitimate exercise of rights, and it is not considered to constitute the crime of extortion.
Article 223.4 of the United States Model Penal Code, "Theft by extortion", states: "Theft is committed when the perpetrator deliberately acquires the property of another person by threatening the following acts: (1)...... (2) denounce the criminal acts of others, or; (3) ......"Property acquired by coercion by means of denunciation, disclosure, litigation or other official acts may be a positive defence if it is claimed in good faith as compensation or compensation for damage incurred in connection with the denunciation, disclosure, litigation or other official acts, or as consideration for property or lawful services, provided that the property demanded by the employer is substantially greater than the property stolen." "Reporting the criminal acts of others" and "litigation or carrying out other official acts" as provided for in paragraph 3 of this article refer to lawful means, that is, the perpetrator coerces the counterpart with specific lawful acts to deliberately obtain the property of others, and also constitutes the crime of extortion.
Japan's criminal law theory holds that the adverse consequences of "coercion" as the crime of extortion do not necessarily require that it itself be illegal. If you see someone committing a crime and threaten to tell the police, and thus obtain hush money from another person, it also constitutes the crime of extortion. There are no restrictions on the methods used to inform adverse consequences. In addition to explicit words and actions, extortion can also be established when one's own experience, personality, professional characteristics, or prestige are used to imply adverse consequences. The act of informing of adverse consequences includes deception, but the act is only a means to make the other party feel frightened, and it still constitutes the crime of extortion. In cases where mere notification of adverse consequences is not sufficient to cause fear, extortion is constituted if the act is combined with other things, such as damage to reputation, to produce a fearful result.
Article 390 of the Mexico Federal Penal Code, Title III (A) "Extortion", states: "Whoever compels another person to do, refrain from doing or tolerates something for the purpose of obtaining benefits for himself or another person or causing damage to another person without the right to do so shall constitute the crime of extortion ......". The above-mentioned provisions of the Criminal Code of Mexico on the crime of extortion, the use of "something" to refer to the content that the perpetrator threatens to achieve, does not confirm whether it is illegal or legal, and should be considered to include the threat of lawful acts.
Article 169 of Chapter II of the Penal Code of Spain, "Threats against persons", states: "Threats to kill, injure, abortion, violations of liberty or ill-treatment of another person, his family or other persons of close contact, or threats that will cause damage to his or her spirit, chastity, psychology, honour, property and socio-economic status, constitute the crime of threat: paragraph 1: If the threat is accompanied by extortion of money or other conditions, even if it is not unlawful, and the attempt is ultimately satisfied, the penalty shall be one to five years' imprisonment; ……”。 Article 171, paragraph 1, states: "A threat that does not constitute an offence in itself but which imposes conditions of illegality shall be punishable by imprisonment from three months to one year or a fine of six months to twenty-four months, depending on the gravity of the offence and the circumstances of the act." ......Obviously, in the provisions of the Spain Criminal Law, threats and extortion include legal acts.
Article 266 of the Penal Code for General Citizens of Norway states: "Whoever commits an illegal act or threatens to commit an illegal act for himself or another person, compels another person to do a certain act, causing him or her to suffer or is in danger of suffering loss, shall be guilty of extortion." The same applies to those who aid or abet. The provisions of the preceding paragraph also apply to the threat of prosecution or denunciation of crimes for the purpose of obtaining illegal benefits for oneself or others...... "It can be seen that the Norway Criminal Law directly stipulates that the threat of extortion includes lawful acts such as prosecuting or denunciating crimes.
Section 281 of the Denmark Penal Code states: "Any person who commits one of the following acts, in addition to the offences provided for in article 288 of this Act, constitutes the crime of extortion: 1) Committing violence, causing physical damage to property, deprivation of liberty, imminent accusation of punishable or dishonorable acts, and threats in public with matters relating to private life, for the purpose of illegally obtaining possession for himself or for another person; ...... "Accusation of punishable conduct" in the provision is a threat of lawful conduct.
It can be seen from this that the "coercion" and "threat" in the criminal laws of various countries in the crime of extortion (category) tend not only to be limited to the use of illegal means, but also include the use of legal means such as reporting, reporting to the police, and litigation, as long as it can make the other party fearful, and dispose of and deliver property based on this fear, it constitutes the crime of extortion.
According to the theory of mainland criminal law, "coercion" in the crime of extortion refers to the use of evil to make the other party fearful. There is no restriction on the type of malignancy, including coercion of the life, body, liberty, reputation, property, etc., of the victim (in the broad sense). The method of notification can be either explicit or implicit, it can be language, writing, action, or action. The victim may be notified directly, or the victim may be conveyed through a third party. This evil is enough to induce fear. Moreover, the realization of evil does not require itself to be illegal. For example, the perpetrator knows the facts of the other party's crime and reports it to the judicial authorities for coercion and extortion. Although it is lawful to denounce it to the judicial authorities, the crime of extortion is still established. If A learns that B has committed the crime of robbery, in order to illegally obtain the property robbed by B, in order to report it to the police and coerce, B develops a fear and delivers part or all of the looted property to A, and A shall be found to be guilty of extortion.
(2) Determination that professional anti-counterfeiting constitutes the crime of extortion
In order for a professional anti-counterfeiting act to constitute the crime of extortion, it must meet the basic structure of the crime of extortion, that is, the perpetrator (professional anti-counterfeiter) coerces (intimidation) against another person (operator) - the other party develops fear - the other party disposes of property based on fear (pays compensation) - the perpetrator (professional anti-counterfeiter) obtains property - the victim (operator) suffers property losses.
In the normal process of professional anti-counterfeiting, there is generally no coercion. After purchasing the goods, the professional anti-counterfeiter directly submits a claim for compensation to the operator on the grounds that the goods are defective, and the operator agrees or disagrees with the compensation, and the negotiation between the two parties is concluded. However, under the following circumstances, professional counterfeiters may have coercive behavior, but whether it constitutes the crime of extortion needs to be specifically determined.
1. The professional anti-counterfeiter did not complain and report to the market supervision department, and directly filed a claim with the operator within the limits prescribed by law (for example, according to the provisions of Article 66 of the Consumer Rights and Interests Protection Law, requiring compensation of three times the loss or a minimum of 500 yuan), and the operator refused to compensate, and the professional anti-counterfeiter claimed that if the compensation was not paid, the illegal behavior of the merchant should be reported to the market supervision department. In this case, the content of the coercion (report) is legitimate, and the compensation demanded is also legitimate, even if the operator has psychological fear due to fear of the content of the professional anti-counterfeiter's claims, and is afraid of being investigated and punished by the market supervision department after being reported, and pays the professional anti-counterfeiter compensation within the legal limit, in principle, it does not constitute the crime of extortion. Because at this time, the act of the professional anti-counterfeiter is an act of exercising rights, and the exercise of the right to claim punitive damages enjoyed by the professional anti-counterfeiter is justified, and its means and purposes are justified, and the amount of compensation requested is also justified, and does not obviously exceed the reasonable range, so it does not constitute a crime.
2. The professional anti-counterfeiter did not complain and report to the market supervision department, and directly proposed compensation far beyond the scope prescribed by law to the operator (such as buying a 10-yuan commodity and asking for compensation of 50,000 yuan), and the operator refused to compensate, and the professional anti-counterfeiter claimed that if the compensation was not paid, it would be necessary to report the illegal behavior of the merchant to the market supervision department. In this case, although the content of the coercion (reporting) is still lawful, the compensation demanded by the person has exceeded the range and reasonable scope prescribed by law, and he does not have the right to compensation beyond the statutory amount, so he has the purpose of illegal possession, and although the means are still legal, the purpose is no longer illegal. If the business operator has psychological fear due to fear of the content of the professional anti-counterfeiter's claims, and is afraid that it will be investigated and dealt with by the market regulation department after being reported, and pays compensation to the professional anti-counterfeiter far beyond the scope prescribed by law, it shall be determined that the professional anti-counterfeiter has constituted the crime of extortion.
3. The professional anti-counterfeiter did not complain and report to the market supervision department, and directly submitted a claim to the operator within the limits prescribed by law, and the operator refused to compensate, and the professional anti-counterfeiter threatened the operator: "If you don't give money, I will kill you." "At this time, although the compensation demanded by the operator is normal and reasonable, the content of the coercion is illegal, regardless of whether the content of the threat can really be carried out, as long as the operator is afraid of the alleged or unknown means of the professional anti-counterfeiter, and accordingly pays it compensation in accordance with the relevant laws and regulations, it shall also be found to be the crime of extortion.
4. Although the professional anti-counterfeiter has not complained or reported to the market supervision department, but he has lied to the operator that he has complained and reported, if the operator is willing to compensate in accordance with the law, he may withdraw the lawsuit, otherwise the market supervision department will be required to investigate and deal with his illegal acts. The operator believed it to be true, and because he was afraid of being investigated and punished, he expressed his willingness to compensate and actually pay the compensation, and asked the professional anti-counterfeiter to "raise his noble hand" and "withdraw the lawsuit". At this time, the professional anti-counterfeiter not only fabricated facts and carried out deceptive acts, but also used this as the content of coercion to demand compensation from the operator, so that the operator fell into a misunderstanding and generated fear, so it should be determined that the conduct of the professional anti-counterfeiter constituted an imaginary competition between the crime of fraud and the crime of extortion, and the punishment should be chosen as a felony.
It can be seen that in the case where a professional anti-counterfeiter constitutes the crime of extortion, his "coercive" behavior should meet two characteristics: first, the content of the coercion is illegal, that is, by notifying the operator of the threat to use illegal means (such as harming the life, person, property, etc. of the operator or the person he cares about), even if the amount of compensation demanded meets the statutory limit, it constitutes extortion; The second is that the purpose of coercion is unlawful, that is, whether the compensation demanded clearly exceeds the statutory limit, and if it exceeds the obvious limit, it constitutes extortion regardless of whether the coercive means are lawful or not.
At the same time, in the case that a professional counterfeiter constitutes the crime of extortion, the extorted operator must fall into fear due to the threat and coercion of the professional counterfeiter. If the operator pays compensation to the professional anti-counterfeiter solely for reasons of contempt, contempt and calming the situation, and is not intimidated by the threat of the professional anti-counterfeiter, nor is he frightened by it, then the professional anti-counterfeiter does not constitute the crime of extortion.
epilogue
In recent years, with the revision of laws and regulations such as the Consumer Rights Protection Law and the Food Safety Law, the professional anti-counterfeiting group has been growing, gradually encroaching on the rights protection space of ordinary consumers, occupying and consuming a lot of administrative resources, and also destroying the business environment to a certain extent, which has brought a negative impact on social independent innovation and integrity management. Professional anti-counterfeiting is free from the fringe of the law, infringing on the normal operation of enterprises and even suspected of committing crimes from time to time. In addition to the need to carefully analyze and identify the phenomenon of professional anti-counterfeiting, it is also necessary for the competent departments of various industries, including market supervision departments, public security organs and other departments, to achieve information exchange and action coordination, establish a long-term mechanism of co-governance and co-management, and make full use of technology and other means to put professional anti-counterfeiting into the "cage" of legality, so as to create a benign business ecology of honest management and trustworthy service.