China News Service, August 4th. According to the website of the Supreme People's Procuratorate, on August 4th, the Supreme People's Procuratorate released 6 typical cases of punishing crimes that disrupt the market competition order according to law, demonstrating the procuratorate's clear attitude to severely punish crimes that disrupt the market competition order, demonstrating the procuratorate. The positive effect of the organs' participation in the comprehensive management of the market competition order.
The data shows that from June 2019 to June 2022, the procuratorial organs prosecuted more than 18,000 key crimes such as the crime of counterfeiting registered trademarks, colluding with bids, infringing trade secrets, false advertising, damaging business reputation, and commodity reputation crimes. There are more than 15,000 people, including more than 7,400 cases of counterfeiting registered trademarks, more than 7,000 people with more than 2,300 cases of collusion, and more than 250 people with more than 130 cases of infringement of trade secrets.
According to the person in charge of the Fourth Procuratorate of the Supreme People's Procuratorate, the cases released this time are selected from the cases of disrupting the market competition order handled by the procuratorial organs in recent years, and can reflect the characteristics of crimes disrupting the market competition order in recent years to a certain extent. It covers complex and diverse types of crimes and constantly renovated criminal methods, as well as situations such as the intersection of criminals and citizens, and the intersection of executions.
For example, in the case of Ding Moujia and others organizing, leading and participating in a triad organization, Ding Moujia and others used industry associations to manipulate commodity market prices for the purpose of amassing money and obtaining illegal benefits, which to a certain extent reflects the criminal orientation of the underworld forces. The penetration of certain industries has seriously disrupted the order of market competition; in the case of Liao and others selling goods with counterfeit registered trademarks, Liao and others sold goods with counterfeit registered trademarks through live broadcast, which damaged the rights of registered trademark owners and consumers. The legitimate rights and interests disrupted the normal market competition order; in the case of Li Moumou and Fan Moumou damaging business reputation and commodity reputation, the perpetrators fabricated competitors to allow users to publish illegal content and reported them to the regulatory authorities through others, causing their opponents to suffer. Major economic losses, and at the same time damage to the reputation of the enterprise and the reputation of the goods, its behavior has exceeded the scope of civil torts and should be punished as a criminal offense.
The typical cases released by the Supreme People's Procuratorate also have prominent features and exemplary significance in terms of law application, case handling methods, and promotion of comprehensive governance.
In the case of Wang Moumou's infringement of trade secrets, the procuratorial organs promptly formulated and issued procuratorial suggestions to help enterprises establish rules and regulations, improve the internal prevention and control supervision mechanism, and prevent the recurrence of unfair competition such as infringement of trade secrets.
In the case of Nantong X Network Technology Co., Ltd., Wan Moumou and others for sabotaging the computer information system, the procuratorial organ accurately determined the nature of the behavior of using traffic attacks to obstruct and destroy competitors' network services, and cracked down on unfair competition in accordance with the law.
In the bribery cases involving non-state staff of Feng and Huang, the procuratorial organs paid special attention to the possible damage and impact of the criminal behavior of employees of large Internet platforms on the fair competition environment in the market, and issued targeted procuratorial recommendations to urge the platforms to further improve internal control. system to promote industry compliance.
"I hope that through the case released this time, the boundaries of criminal sanctions for disrupting the competition order will be clearly shown to the society, and enterprises should be reminded to firmly establish compliance awareness and participate in fair and just competition in the process of operation." The person in charge of the Fourth Procuratorate of the Supreme People's Procuratorate said. .
Attachment: Typical Cases of Procuratorial Organs Punishing Crimes of Disrupting Market Competition Order
The case of Liao and others selling goods with counterfeit registered trademarks
【Key words】
Selling goods with counterfeit registered trademarks Live streaming with goods Full chain crackdown Procuratorial suggestions
【Basic case】
On July 24, 2017, Liao signed a cooperation agreement with G Information Technology Co., Ltd. and became the company's contracted anchor, and the company staffed a live broadcast team to market goods for online shop merchants on an e-commerce platform by live broadcast.
Since 2019, Liao's live broadcast team has cooperated with many online stores such as "ADOL Straightforward Luxury Customization", "BLINGBLING", "Chuangsheng Clothing" and "Zhuji Annie Jewelry". The live broadcast method is for the above-mentioned online stores to sell clothing, accessories, watches and other commodities with counterfeit trademarks such as "Dior", "CHANEL" and "LOEWE", with a total sales amount of more than 670,000 yuan.
On March 26, 2021, the People's Procuratorate of Shanghai Hongkou District prosecuted 6 members of Liao's live broadcast team for the crime of selling commodities with counterfeit registered trademarks (the suspects of related counterfeit sellers will all be dealt with separately).
On June 29, 2021, the Shanghai Yangpu District People's Court sentenced Liao to three years and four months in prison and a fine of RMB 400,000 for the crime of selling commodities with counterfeit registered trademarks; the other five defendants were sentenced to three years and two Fixed-term imprisonment ranging from one month to two years, and a fine ranging from RMB 50,000 to 5,000. Some defendants are subject to suspended sentences.
After the first-instance judgment was pronounced, none of the defendants appealed, and the judgment has come into effect.
[Procuratorial organs perform their duties]
Guide investigation and evidence collection.
In this case, products with counterfeit registered trademarks are sold through live broadcast. Compared with the traditional mode of selling products through physical stores or online stores, the sales model of live broadcast with goods has the characteristics of "immediacy", "wide audience" and "separation of delivery and delivery." Therefore, there are difficulties in fixing evidence, identifying infringing goods, comparing the identity of the goods displayed on the live broadcast with the goods actually delivered, and proving the subjective intention of the criminal suspect.
In order to solve the above-mentioned difficulties in handling the case, the Hongkou District Procuratorate intervened in advance to guide the investigation and collection of evidence after the public security organ filed the case, and clarified the ideas and standards of evidence collection.
First, it is recommended that investigators conduct targeted screen recording and screenshots of the live broadcast behavior of the anchor, and fix the evidence of selling infringing goods during the live broadcast.
The second is to guide the investigators to obtain the sales data of the anchor and the merchant from the live broadcast platform and the e-commerce platform respectively, and pay attention to the integrity of the data.
The third is to determine the whole chain of attack ideas from "supply" to "carrying goods", collect evidence from the suppliers and buyers respectively, and build the relationship between the anchor and the infringing goods from the upstream and downstream directions to prove that "selling on behalf of others" In the mode, the products displayed by the anchor in the live broadcast room are identical with the products sold by the merchants and are indeed infringing products.
Fourth, it is recommended that investigators obtain the WeChat chat records of the anchor team members, and use WeChat chat records between the anchor team members, between the anchor team and suppliers, the fan groups established by the anchor team, after-sales groups, etc. to prove the anchor team’s concern about selling fakes. Subjectively knowing.
Review the prosecution stage.
On the basis of guiding the investigation, the Hongkou District Procuratorate carried out its own supplementary investigation in a timely manner to find out the facts of the case.
The first is to clarify the amount of crime.
The electronic data retrieved from the live broadcast platform and e-commerce platform will be compared with the live broadcast screen recording and screen capture files, and the buyer's testimonies and purchase records will be combined to confirm the fact that the live broadcast sells fakes.
Through the above methods, the brand and amount of the infringing goods sold by Liao through live broadcast were further clarified.
The second is to clarify the subject of the crime.
After review, it was found that Liao was a contracted anchor of G Information Technology Co., Ltd., and the company staffed Liao to form a live broadcast team to carry out live broadcasts on the live broadcast platform.
In order to find out whether G Information Technology Co., Ltd. and related personnel participated in the crime, the Hongkou District Procuratorate obtained company documents such as the cooperation agreement signed between the company and the anchor, the labor contract signed with the employee, job responsibilities, and corporate rules and regulations, and asked the company's senior officials. The affiliation, cooperation model and live broadcast workflow between the information technology limited company and the contracted anchors shall be ascertained by means of management personnel and department heads, etc., so as to exclude the suspected criminal involvement of the technology limited company.
court hearing stage.
The defendants and their defenders had no objection to the criminal facts and charges charged by the procuratorate, but Liao's defender believed that Liao was an accessory because he did not play a major role in the sale of goods with counterfeit registered trademarks.
The prosecutor's defense pointed out that Liao played a major role in the joint crime and should be identified as the principal offender.
First, although Liao has a cooperative relationship with G Information Technology Co., Ltd., and the company has equipped him with a live broadcast team based on Liao’s fans and live broadcast sales, because Liao belongs to the head anchor, his team operation has a larger role. Autonomy, the specific live broadcast behavior is not subject to the domination and control of G Information Technology Co., Ltd.
The second is that Liao, as the anchor, is the core figure of the live broadcast team. Although the operators contacted the merchants, arranged the schedule and initially screened the live broadcast selections in the early stage, they still had to choose the final live broadcast products and how to display the products in the live broadcast (including the live broadcast process). labeling, etc.) have the right to decide.
The third is that the merchant chooses to cooperate with Liao Mou because of the number of fans and the ability to bring goods. Although the goods are provided by the merchant, the sales volume is generated by Liao’s live broadcast, and the merchant and the anchor are in the process of live broadcast. The effects complement each other.
Fourth, selling fakes through live broadcasts not only damages the legitimate rights and interests of registered trademark owners, but also disrupts the normal order of online marketing, resulting in bad social impacts.
【Typical meaning】
(1) Severely punish crimes of infringement and counterfeiting in the field of live broadcasting, and maintain the order of online marketing.
As a new type of e-commerce marketing model, "live broadcast with goods" brings huge economic benefits through "realization" of traffic, and drives the vigorous development of the network economy.
But at the same time, under the temptation of interests, unfair competition such as fraudulent promotion, false propaganda, infringing and selling counterfeit goods has gradually emerged, which has brought an impact on the live broadcast e-commerce industry.
Selling infringing goods through live broadcast not only damages the legitimate rights and interests of registered trademark owners and consumers, but also disrupts the normal market competition order.
In order to maintain the safety and order of online marketing, the procuratorial organs dig deep into the industrial chain behind the fake anchors, and crack down on the whole chain of upstream crimes such as fake sellers.
A total of 39 associates selling counterfeit goods were sentenced to three years and eight months in prison to five months in prison for the crime of selling commodities with counterfeit registered trademarks.
(2) Actively perform duties to extend procuratorial functions and escort the development of the new economy.
The compliant operation of live broadcast e-commerce enterprises is the cornerstone of the healthy development of the new format of live broadcast marketing.
While punishing crimes, procuratorial organs should also pay attention to the criminal compliance risks of live e-commerce companies in cases, give full play to the procuratorial initiative, extend procuratorial functions through procuratorial suggestions and other means, urge and guide enterprises to improve relevant mechanisms, and track enterprises to implement rectification. , so as to prevent corporate legal risks and help the sustainable and healthy development of enterprises.
At the same time, relying on typical cases to carry out legal propaganda in various ways, guide online live broadcast marketing entities to abide by laws and business ethics, participate in market competition fairly, and create a good online marketing environment.
Wang Moumou's case of infringement of trade secrets
【Key words】
Infringement of trade secrets Innovation incentives Pre-trial leadership
【Basic case】
Company A is a technological innovation enterprise established in 1994. Its business scope includes energy-saving and environmental-friendly drying technology development, service and technology transfer; production and sales of energy-saving and environmental-friendly drying and supporting equipment, and provision of related technical consulting services.
Defendant Wang Moumou worked in Company A from July 1998 to March 2014, signed the Labor Contract and the Confidentiality Contract with Company A on July 1, 2008, and successively served as the head of the Fine Chemicals Division of Company A , Vice President of Design Institute, etc.
On July 9, 2008, when Wang Moumou was working in Company A, in order to seek benefits, he borrowed the identity of others to establish Company B, and actually controlled and operated Company B. Company B mainly produced and sold chemical dust removal and drying equipment.
From August 2008 to October 2018, Wang Moumou violated the agreement and requirements with Company A on keeping trade secrets, and used Company A's trade secrets to produce and operate a flash dryer similar to Company A's in Company B ( industrial drying equipment).
After identification, the technical information of the high-viscosity flash dryer owned by Company A is a trade secret; the technical information of the flash dryer used by Company B is the same as that of Company A.
After auditing, the defendant Wang Moumou violated the trade secrets of Company A and caused losses to Company A totaling more than RMB 4.55 million.
On August 12, 2019, the People's Procuratorate of Jinan High-tech Industrial Development Zone, Shandong Province filed a public prosecution with the People's Court of Jinan High-tech Industrial Development Zone for Wang Moumou's crime of infringing trade secrets.
On May 15, 2020, the People's Court of Jinan High-tech Industrial Development Zone made a first-instance verdict and sentenced the defendant Wang Moumou to three years and nine months in prison and a fine of RMB 200,000 for the crime of infringing trade secrets.
Defendant Wang Moumou refused to accept the judgment and appealed.
On November 26 of the same year, the Jinan Intermediate People's Court made a final judgment, believing that the original judgment was accurate and the trial procedure was legal, but that the amount of losses caused by Wang Moumou to Company A was wrong (the original judgment determined that the loss was more than 5.63 million yuan) , sentenced the defendant Wang Moumou to three years and six months in prison for the crime of infringing commercial secrets and fined RMB 200,000.
[Procuratorial organs perform their duties]
Review the prosecution stage.
The flash dryer technology involved in this case is a drying technology, which belongs to the national general mechanical equipment technology.
In order to accurately determine whether the flash dryer technology involved in the case constitutes a trade secret, the procuratorial organs give full play to their leading role before trial, combine hands-on case handling with guided investigation and evidence collection, and consolidate the case evidence system.
The investigators went to Company A for many times to check the infringed equipment, learn more about the drying expertise and the composition and working principles of various types of flash dryer equipment involved in the case, and implement the technical details from research and development, design, manufacturing, and use. One-to-one correspondence between the three core dense points and the drawings.
At the same time, focus on examining whether the technology involved is non-public knowledge.
By retrieving electronic data for fixed inspection materials, reviewing the retrieval strategy and novelty retrieval process of the three dense points in the new report, and listening to the opinions of industry experts, it is finally determined that although the flash dryer belongs to the national general mechanical equipment, the equipment is not suitable for production. The size and structure will vary according to customer requirements, but the secret points attached to its core technology have been verified through a large number of practical engineering applications and have never been disclosed to the public. Flash dryer technical information is an opinion that is not known in the art.
In addition, after review, the procuratorial organ found that Company B established by Wang Moumou did not have specialized technical personnel to conduct research and development. Most of the products produced by the company were the same equipment of Company A, and the drawings were all the drawings of Company A provided by Wang Moumou. Wang Moumou established Company B to use the technology of Company A to produce similar products. After the establishment of Company B, the main activity was to infringe on the trade secrets of Company A, so Wang Moumou should be identified as a crime.
court hearing stage.
Defendant Wang Moumou defended his innocence, and the defender defended his innocence, proposing that: First, the flash dryer technology of Company A was a well-known technology, not a trade secret.
Second, the evidence in the case cannot prove that the drawings originated from Wang Moumou, nor can it prove that Wang Moumou used the drawings.
The third is about the amount involved and the amount of profit. According to the calculation of the gross profit margin of the main business of the industry announced by the China General Machinery Industry Association, the maximum loss of company A should be more than 360,000 yuan.
The prosecutor's defense is as follows: First, the existing documentary evidence, witness testimony, appraisal opinions and expert opinions can confirm each other, confirming that the three secret points of Company A truly reflect the core technology of its flash dryer.
The appraisal agency in this case has the qualifications for judicial appraisal, the appraisal procedure is legal, and the novelty finding agency has obtained an objective and fair novelty finding report based on the appraisal materials, so it can be determined that the technical information involved in the case of Company A is non-publicly known technology.
In addition, according to the research and development materials, sales contracts and appraisal opinions provided by Company A, it can be determined that Company A’s flash dryer technology has been self-developed and improved, which has brought economic benefits to Company A, has value and practicability, and is of value and practicability. The company has taken confidentiality measures to protect its trade secrets, and it can be determined that the technology involved is a trade secret.
Second, according to the testimony of multiple witnesses, it can be confirmed that the drawings used by Company B to produce the flash dryer were provided by Wang Moumou; combined with Company A's report materials and employee testimonies, and the "Labor Contract" signed by Company A and Wang Moumou The "Confidentiality Contract" can confirm that Wang Moumou has conditional access to the drawings of the flash dryer that Company A takes confidentiality measures during his work in Company A; according to the appraisal opinion, it can be confirmed that the technical information of the flash dryer sold by Company B is consistent with Company A's technical information. Flash dryer technical information is the same.
Wang Moumou used the above-mentioned drawings in violation of confidentiality requirements even though he knew that the drawings of the flash dryer were kept secret by Company A, which constituted the crime of infringing trade secrets.
The third is the amount of losses identified in this case. The amount of losses caused by the infringement of trade secrets to the right holder is determined by multiplying the sales volume of Company B's flash dryers by the profit margin of Company A's flash dryers, and only includes the amount of losses caused by Company B's flash dryers. For the dryer and core components, common components and auxiliary machines have been removed, and the calculation method is objective and fair.
The collegial panel adopted the public prosecution opinions and sentencing recommendations.
【Typical meaning】
(1) Severely punish crimes of infringing commercial secrets and maintain the incentive mechanism for market innovation.
Infringement of trade secrets not only damages the expected interests of the right holders in their own trade secrets, but also destroys the market innovation incentive mechanism, which may lead to a reduction in innovation investment and a slowdown in the progress of technology research and development, which will damage the healthy development of the market economy in the long run.
In this case, Company A independently developed and designed a number of technical information, and was the owner of these trade secrets, and the business income formed by these technologies accounted for the vast majority of Company A's income.
The defendant copied and used more than 100 technical drawings of the obligee, causing heavy losses to the obligee of the trade secret, and the business operation was in trouble.
This kind of unfair competition has seriously disrupted the market economic order of fair competition, damaged the legitimate rights and interests of rights holders, and affected the enthusiasm of innovative enterprises for technology research and development, and should be severely punished in accordance with the law.
(2) Actively extend the procuratorial function and escort the innovation and development of enterprises.
During the handling of the case, the procuratorate found that Company A was a scientific and technological enterprise that had been engaged in the research and development of drying technology for many years, and a number of drying technologies developed by it had won national and provincial awards.
However, while focusing on scientific and technological innovation in research and development, the comprehensive protection of trade secrets is still insufficient.
In this regard, the procuratorial organs promptly issued procuratorial suggestions to help enterprises establish rules and regulations, improve the internal prevention and control supervision mechanism, and prevent the recurrence of unfair competition such as infringement of trade secrets.
At the same time, the Jinan Procurator Escort App is recommended to enterprises to provide enterprises with online legal consulting services and risk prevention suggestions; carry out legal warning education based on cases, and help enterprises develop simultaneously online and offline.
At present, the lost customers and market of Company A have gradually returned, and the company has resumed normal operation.
Li Moumou and Fan Moumou damage business reputation and commodity reputation
【Key words】
Damage to business reputation and commodity reputation Internet industry Evaluation mechanism Recovery of losses
【Basic case】
Shanghai N Company is an Internet company established in 2015. The "U**" App is an Internet social software, which is the company's only commercial Internet product.
In October 2019, the defendant Li Moumou, who was the audit manager of a technology company in Shanghai at the time, and his subordinate Fan Moumou, in order to achieve the purpose of suppressing competitors in the same industry, knowing that the illegal content will not be publicly released after the app operating platform has reviewed it. In the case of violating the regulations, publish the illegal content on the App and pretend that the content has been publicly released, and fabricate the "U**" App to allow users to publish relevant materials of the illegal content and report it to the regulatory authorities through others.
Due to the above report, in November 2019, the "U**" App was removed from the national app store by the regulatory authorities.
Users cannot download the App or enjoy the update service through Huawei App Store, Xiaomi App Store, etc.
Company N suffered heavy economic losses due to the delisting of the "U**" App.
On September 22, 2020, the Shanghai Putuo District People's Procuratorate filed a public prosecution with the Shanghai Putuo District People's Court for the crimes of defendants Li Moumou and Fan Moumou guilty of damaging business reputation and commodity reputation. The two defendants voluntarily pleaded guilty and accepted punishment.
On December 30, 2020, the Shanghai Putuo District People's Court sentenced the defendant Li Moumou to one year in prison, suspended for one year, and fined RMB 50,000 for the crime of damaging business reputation and commodity reputation; sentenced the defendant Fan Moumou He was sentenced to nine months in prison, suspended for one year, and a fine of 30,000 yuan.
Refunds seized on the case shall be returned to the victim unit.
After the first-instance judgment was pronounced, neither of the two defendants appealed, and the judgment has come into effect.
[Procuratorial organs perform their duties]
Guide investigation and evidence collection.
In order to clarify the economic loss of the victim unit, the procuratorial organ invited the judicial audit unit to issue an audit opinion based on the number of new users and the change in monthly active users that were directly lost after the app was taken off the shelves.
At the same time, the public security organs are required to supplement the evidence materials on the damage of business reputation with the relevant user data before and after the app was taken off the shelves, the changes in product reputation, the market share of the victimized unit, the scale of business operations, and changes in financing.
In addition, the changes in the number of users detected by third-party agencies before and after the app was taken off the shelves, changes in the registration and login activity of product users, and customer evaluations, complaints, and refunds on the app being taken off the shelf can be quantified and clearly related. content to ensure that the allegations are clear and accurate.
Review the arrest stage.
On February 19, 2020, the public security organs submitted a request to the procuratorial organs for approval of arrest on the basis of the crime of suspects Li Moumou and Fan Moumou suspected of sabotaging production and operation.
The procuratorial organ believes that the crime of destroying production and operation is the crime of "violation of property" in Chapter V of the Criminal Law.
The crime of damaging business reputation and commodity reputation is the crime of "destroying the socialist market economic order" in Chapter III of the Criminal Law, which combats crimes that disrupt the normal market economic order.
After the app involved was taken off the shelves, the original users were not unable to continue to use it. The consequences of the actions of Li Moumou and others were mainly to reduce the audience channels and the number of new users of the app, as well as the market position and development expectations of the victim unit. , the victim unit suffered heavy economic losses, which not only caused damage to the victim's reputation, but also seriously disrupted the normal market competition order.
At the same time, the victim unit only operates the Internet product involved in the case, and its corporate business reputation and commodity reputation are highly unified. Therefore, malicious slander of the involved App will cause damage to the above two kinds of goodwill at the same time. This case is characterized as The crime of damaging commercial reputation and commodity reputation is more appropriate.
On February 26, 2020, the procuratorial organs approved the arrest of criminal suspects Li Moumou and Fan Moumou on suspicion of damaging business reputation and commodity reputation, which also pointed out the direction for the investigation.
court hearing stage.
During the court hearing, the focus of the case was on the assessment of the economic damages of the victim unit.
The defenders of the two defendants argued that: the victim unit was always in a state of book losses before and after the incident, and neither the audit report opinions adopted by the public prosecution agency nor the consulting report on the loss of goodwill provided by the victim unit could objectively reflect the economic loss of the victim unit.
In order to clarify the accusation, the procuratorial organ invited the expert to appear in court to accept the inquiries of both the prosecution and the defense, and the differences in the determination of the economic losses of Internet companies and traditional companies, the introduction of "monthly active users" as an evaluation indicator in the audit report, and the objectivity of the data sources used in the evaluation. etc. to be stated.
The core assets of Internet companies are user volume and data (or intellectual property).
The continuous increase in the monthly active user data means that new users continue to download the app, and it also reflects the continuous use of the product by existing customers and reflects the real market situation of the app.
Therefore, it is reasonable to use the change in the number of monthly active users as one of the reference data for evaluating the direct damage of enterprises, which can more objectively reflect the economic losses suffered by Internet enterprises.
The procuratorial organs visually displayed the average monthly sales benchmark net cash inflow of the victims of the victims by displaying the account books of the victim units, the funds entered into the bank and third-party payment platforms, and relevant sales data, so as to ensure that the allegations are based on the law and the facts are clear and complete. .
In the end, the court accepted all the criminal facts and sentencing recommendations charged by the prosecutor.
【Typical meaning】
(1) Correct the chaos in the network industry, and clearly define the behavior of unfair competition.
The intangibility and information asymmetry of Internet industry services make unfair competition in this field take on a new trend.
Vicious commercial defamation includes not only using the Internet to publicly fabricate and slander competitors, but also maliciously reporting competitors to the regulatory authorities and other unfair competition methods.
The behavior of the defendant in this case to make a malicious complaint to the network supervision department is one of the more typical situations.
This behavior not only infringes upon the interests of enterprises, but also undermines the normal order of competition in the Internet market. It is essentially an unfair competition behavior that disrupts the market order, and should be cracked down in accordance with the law.
(2) Assist enterprises to resume work and production, and actively recover assets and restore losses.
The case occurred during the epidemic. In order to help the victim enterprises resume work and production as soon as possible, the procuratorial organ actively contacted the relevant regulatory authorities to understand the reasons for the removal of the app involved in the case, and notified the relevant authorities of the progress of the case in a timely manner for the regulatory authorities to evaluate the app in the future. Provide reference for normal operation indicators; at the same time, contact the person in charge of the victim unit and encourage him to report the real situation to the relevant departments.
The apps involved in the case have resumed operations in various app stores one after another.
In order to further help the victimized unit recover the stolen goods and restore the damages, the procuratorial organs fully explained the law to Li Moumou and Fan Moumou, explained the leniency system for admitting guilt and accepting punishment, and prompted Li Moumou and Fan Moumou to sincerely confess and repent, and the two took the initiative to pay the judiciary. More than 3 million yuan was used as economic compensation for the victim unit, and efforts were made to recover the economic loss of the victim unit.
(3) Actively perform duties and serve to ensure the business environment of Internet companies.
The procuratorial organs focus on the protection of rights and interests, actively perform their procuratorial functions, and promptly punish unfair competition behaviors with serious circumstances, protect the rights of market players in the Internet field in accordance with the law, and maintain the order of fair competition.
At the same time, the procuratorial organ discovered the potential risks of compliance operation of Internet companies through the handling of the case, and called on more than 30 Internet companies in the region to sign the framework agreement on compliance of Internet companies through visits and investigations, asking companies in need, and holding regular meetings with Internet companies in the region. The seminar, through legal risk reminders, professional consultation and training and other systems, guides the compliance operation of Internet companies in the region, stimulates positive resonance in the Internet industry, and achieves good results.
The case of Nantong X Network Technology Co., Ltd., Wan Moumou and others destroying the computer information system
【Key words】
Destruction of computer information systems Unfair competition Corporate compliance
【Basic case】
Nantong X Network Technology Co., Ltd. (hereinafter referred to as "X Company") is a private enterprise in home textile sales e-commerce.
At the beginning of December 2017, Wan Moumou, the legal representative of X Company, suspected that the competitor J Company had attacked his company's website, and after discussing with the technical director Yang Moumou and others, decided to hire hackers to attack J Company's website (the website is more than 10,000 people). users provide services).
Wan Moumou established contact with Liu Mou (minor, dealt with separately) through the QQ group.
On the morning of December 12, 2017, Wan hired Liu to attack J Company's website.
At 13:00 on the same day, Liu hired Zhu and others to jointly carry out a DDoS attack on J Company's website, resulting in the blocking of the rented server of the website. From 17:15 to 18:30 on the same day, J Company's website had no traffic and could not operate normally. .
Company J paid for anti-DDoS attack services in order to respond to traffic attacks and restore website functions.
On November 30, 2018, the People's Procuratorate of Chongchuan District, Nantong City, Jiangsu Province prosecuted Company X, Wan Moumou, Yang Moumou and Zhu Mou to the Chongchuan District People's Court for the crime of sabotaging the computer information system.
On October 21, 2019, the court sentenced Company X to a fine of 100,000 yuan for the crime of sabotaging the computer information system, and sentenced Wan Moumou and others to fixed-term imprisonment ranging from two to three years, with probation applicable.
The judgment is now in effect.
[Procuratorial organs perform their duties]
Guide investigation and evidence collection.
In April 2018, at the invitation of the public security organs, the procuratorial organs dispatched personnel to intervene in advance, and found that Company X had used DDoS attacks to destroy the normal production and operation of Company J. According to the principle of choosing a felony punishment, this case should be convicted and punished for the crime of destroying the computer information system.
Based on the elements of crime and the standards for filing and prosecution, the procuratorial organs put forward the following suggestions for guiding the investigation: First, obtain objective evidence such as DDoS attack records, traffic data, defense logs, and cloud server work orders involved in the case, and clarify the attack method, attack time, and abnormality operating hours, etc.
The second is to obtain the user information of the victim unit before the incident, including individual users, business registration time, number, transaction status, etc., and clarify the number of computer information system users.
The third is to obtain the contract of the victim unit for purchasing security services, payment details, etc., to identify the direct economic loss caused by the cyber attack to the victim unit, and the necessary expenses for restoring data and functions.
At the same time, in order to ensure the normal operation of the enterprises involved in the crime, based on the circumstances of the whole case, it is recommended that non-custodial compulsory measures be taken against each criminal suspect.
Based on the opinions of the procuratorial organs, the public security organs conduct further investigations and supplement and improve the evidence.
Review the prosecution stage.
After review, the procuratorial organ found that, on the one hand, the public security organ failed to obtain the member information of J Company's website, resulting in an unknown number of server users; Fair competition, while punishing crimes, we should also focus on protecting the development of the private economy.
The procuratorial organs focus on three aspects: First, protect the customer information of the victimized enterprises in accordance with the law.
The number of website users is an important evidence for the conviction and sentencing of the crime of destroying the computer information system, and it is also the core competitiveness of the e-commerce platform for survival.
For this reason, the procuratorial organ recommends that investigators extract the electronic data of the victim company's relevant member information according to law, but bind it into a secret file, which is only provided for review by the case-handling unit and lawyers, without public cross-examination during the trial, and promptly inform the victim company of the confidentiality measures taken with respect to the relevant evidence. and the scope of knowledge, eliminate the concerns of the victim unit concerned about data leakage, and actively cooperate with the investigation agency to investigate and collect evidence.
The second is to extensively listen to expert opinions.
In order to accurately identify the facts of the crime and apply the law, the procuratorial organs rely on the Nantong Financial Cybercrime Research Base to give full play to the academic and technical committees, based on the difficulties of technical traceability, difficulty in proving causality, and inconsistent identification of economic losses in handling DDoS attack cases. It has fully discussed with university professors and network technicians about the number of users, economic losses, causality and other issues in the crime of sabotaging computer information systems, and provided theoretical support for the handling of the case.
The third is to promote reconciliation between the two sides.
The procuratorial organ visited the two units many times, explained the law from the perspective of the healthy development of the home textile sales e-commerce industry, and maintained a fair market competition environment. Company X voluntarily compensated Company J of RMB 500,000.
court hearing stage.
During the court hearing, the defender pointed out that the causal relationship between the attack and the result is not exclusive, and that the number of registered users of the website cannot be ruled out as a new addition after the incident.
In response to the defense opinion, the public prosecutor applied for expert witnesses to appear in court to express their opinions on the website being unable to operate normally due to traffic attacks. The defense was as follows based on the evidence: First, based on the defendant's confession, witness testimony, WeChat chat records, transfer records, and Tencent cloud server abnormality diagnosis report , Tencent Cloud work order, security agreement and other evidence, the time when the defendant negotiated the attack, the time when the defendant transferred money to the hacker, the time when the website actually failed to run normally, the time when the victim purchased the protection package and entrusted the security company to protect it Corresponding to each other and forming a chain of evidence, it is enough to prove that the defendant unit hired hackers to attack the victim unit's website and caused the website to fail to operate normally for more than 1 hour.
Second, the investigators extracted the registered user data of the website as of the time of the incident in accordance with legal procedures, and after removing invalid data and duplicate data, they should be identified as the number of website users.
At the same time, the website identification documents provided by the victim unit, as well as the declaration materials and news reports for the two years before the incident, also showed the situation and growth of website users, which laid a solid evidence base for accurately identifying the number of website users.
【Typical meaning】
(1) Accurately determine the nature of the behavior of using traffic attacks to obstruct or destroy competitors' network services, and crack down on unfair competition in accordance with the law.
According to the provisions of Article 12, Paragraph 2, Item 4 of the Anti-Unfair Competition Law of the People's Republic of China, it is an act of unfair competition to obstruct or destroy the normal operation of network products or services legally provided by other operators.
In practice, using traffic and other technical means to attack competitor websites is a common means of malicious competition among peers.
During the case handling, the procuratorial organs focused on examining the situation of the computer information system being unable to provide network services and the economic losses caused by the attack methods.
For the purpose of malicious competition, retaliation, etc., the perpetrator uses traffic attacks to cause the network services legally provided by others to fail to operate normally, causing economic losses, and at the same time constituting the crime of sabotaging computer information systems and sabotaging production and operation. Felony punishment.
(二)发挥案例法治教育作用，营造公平竞争市场环境。为推动企业建立良性竞争机制，检察机关结合办案中发现的涉案企业存在的法律风险意识不足、管理制度不健全等问题：一方面，严格落实普法责任制，开展“送法进企业”，邀请涉案企业代表参加法治讲座、公开听证、旁听庭审等，帮助企业明确市场竞争主体权利义务、争议解决途径；另一方面，结合办案，通过实地走访等，针对公司经营中的困难和问题提出针对性建议，帮助企业建立健全公平竞争规章制度，引导企业依法经营。
丁某甲等人组织、领导、参加黑社会性质组织案
【关键词】
黑社会性质组织 行刑衔接 垄断协议 行业治理
【基本案情】
2007年起，被告人丁某甲纠集多人，以串通投标、行贿、非法拘禁等多种非法手段插手江西省丰城市老城区拆迁。2010年，丁某甲成立丰城市闽邑建材有限公司，利用有关国家工作人员的纵容，通过暴力、威胁方法有组织地实施寻衅滋事、强迫交易、故意毁坏财物等违法犯罪，攫取巨额经济利益，称霸一方，严重破坏当地正常的生产、经营秩序，逐渐形成了以丁某甲为组织、领导者，以丁某乙、游某某、邹某某为骨干成员的黑社会性质组织。
为实现非法垄断丰城市商品混凝土市场目的，2012年7月，闽邑建材有限公司与丰城市另外几家商品混凝土企业联合成立丰城市商品混凝土企业行业自律小组(2013年9月更名为丰城市预拌混凝土协会，以下简称“混凝土协会”)。丁某甲作为该协会会长，一方面通过统一提高协会成员公司商品混凝土销售价格，统一降低销售垫资额度的方式，操纵混凝土市场价格；另一方面，在市容监察大队有关工作人员的纵容下，利用其领导的黑社会性质组织实施寻衅滋事、强迫交易、故意毁坏财物等违法犯罪活动，对非混凝土协会会员的混凝土搅拌站及建筑商自建搅拌站进行强势打压，迫使建筑商不得不接受协会成员公司提供的高价商品混凝土。2012年至2018年间，该黑社会性质组织以混凝土协会名义强揽混凝土业务，强迫交易犯罪金额高达4000余万元，并收取混凝土协会会员公司会费1700余万元。混凝土协会会员公司因该黑社会性质组织非法控制丰城城区及周边商品混凝土市场，获取经济利益共计2.57亿余元。
2020年1月18日，江西省宜春市人民检察院以被告人丁某甲等人犯组织、领导、参加黑社会性质组织罪、强迫交易罪、寻衅滋事罪、故意杀人罪等罪名提起公诉。2020年9月28日，宜春市中级人民法院作出一审判决，丁某甲犯组织、领导黑社会性质组织罪、故意杀人罪、强迫交易罪、行贿罪等11个罪名，数罪并罚，决定执行无期徒刑，剥夺政治权利终身，并处没收个人全部财产；其余19名组织成员分别被判处有期徒刑十二年六个月至一年十个月不等，并处罚金及剥夺政治权利。被告人丁某甲不服一审判决，提出上诉。2021年6月28日，江西省高级人民法院二审裁定驳回上诉，维持原判。
【检察机关履职过程】
引导侦查取证。2019年6月3日，应公安机关邀请，江西省宜春市人民检察院提前介入、引导侦查取证。检察机关在审查该黑社会性质组织强迫交易、寻衅滋事、故意毁坏财物等违法犯罪事实时，发现丁某甲等人垄断丰城市城区及周边混凝土市场的行为可能触犯《中华人民共和国反垄断法》的相关规定。检察机关提出如下侦查建议：一是查明该犯罪组织与混凝土协会的关系。调取混凝土协会关于限制混凝土生产数量、固定价格、分割销售市场、联合抵制交易的垄断协议，自律小组和协会先后通知城区及周边预拌混凝土使用单位关于混凝土涨价的通知、协会会员微信群关于统一价格的聊天记录、内部管理办法、协会的职位等级和分工等相关证据，以证明该犯罪组织以协会为载体，借助协会的组织管理行为，实现组织垄断商品混凝土市场的非法意图。二是查明该犯罪组织非法控制市场的手段。调取混凝土协会组织巡查队对非协会搅拌站实施的强势打压违法犯罪行为，丁某甲等组织成员拉拢、收买国家机关工作人员，以及部分公职人员选择性执法、非法限制非协会成员公司进入丰城市场的证据，以证明该犯罪组织以暴力为后盾，非法控制商品混凝土市场。三是查明该非法控制行为是否构成垄断。调取城区及周边工地混凝土全部由混凝土协会会员企业供应、非协会会员企业无法进入丰城市场的证据，丰城各工地混凝土价格是否与协会定价一致的证据，向市场监管部门移送协会涉嫌垄断线索，积极配合调查取证，证明该犯罪组织非法控制市场的程度，以及是否构成行业垄断。公安机关根据检察机关意见，进一步补充完善了相关证据。
审查起诉阶段。检察机关在审查中发现，市场监督管理部门尚未对混凝土协会的行为是否构成垄断作出结论；有的协会会员单位反映企业系被迫加入协会，迫切希望把负面影响降到最低，保护企业正常经营；混凝土协会长期非法控制商品混凝土市场的行为暴露出的相关行业乱象亟待整顿。检察机关采取如下措施：一是多次前往江西省市场监督管理局稽查分局会商研讨，推动省市场监督管理局对该协会涉嫌垄断行为立案调查。二是协调侦查机关加强与行政执法部门反垄断调查取证的相互配合衔接，根据协会各会员单位实施垄断行为的持续时间、情节严重程度和社会影响等进行区别认定。三是针对案件办理过程中发现的丰城市混凝土行业管理存在的问题，分别向工信、住建等部门发出检察建议。
法庭审理阶段。法庭审理过程中，辩护人提出丁某甲没有通过混凝土协会对丰城商品混凝土市场形成非法控制，不符合黑社会性质组织的危害性特征。一是混凝土协会不仅没有垄断混凝土销售，而且通过打击无资质搅拌站，遏制了行业恶性价格竞争。二是丁某甲等人虽然实施了打击非法搅拌站违法行为，但并无相关机构认定构成垄断，不足以认定形成行业非法控制。针对辩护意见，公诉人答辩指出：丁某甲的行为符合组织、领导黑社会性质组织罪的危害性特征。一是该组织打击的对象并非“无资质搅拌站”，而是“非协会搅拌站”。本案中两家有资质的公司前期因未加入协会屡次受到打压，后期被迫加入协会，参与了共同非法控制丰城商品混凝土市场，从受害者转变为加害者。二是该组织打击非混凝土协会搅拌站的目的是垄断市场。对无资质搅拌站，该组织明知无权处置，不向相关监管部门报告，却以拦车、缴钥匙、甚至拆除等违法犯罪行为擅自打压，其目的并非打击行业恶性价格竞争行为，而是排除其他企业参与竞争的机会，实现其垄断市场的目的。三是行政机关对垄断行为的认定，不是认定非法控制特征的必要条件。虽然行政主管部门对混凝土协会涉嫌垄断行为的调查尚未出具调查结论，但该组织招揽社会闲散人员成立巡逻队，大量实施寻衅滋事、强迫交易等违法犯罪活动，以暴力为后盾统一了丰城城区及周边的商品混凝土价格，足以认定对丰城市商品混凝土行业的生产、经营形成了非法控制，严重破坏了丰城城区及周边正常的经济、社会生活秩序，造成重大影响。
【典型意义】
(一)行刑衔接双向联动，形成打击垄断行为合力。本案中，丁某甲等人垄断丰城市城区及周边混凝土市场的行为可能触犯反垄断法的相关规定。检察机关及时与公安机关交换意见，建议公安机关收集调取预拌混凝土协会协议、内部管理办法、统一商品混凝土价格的文件等证据，引导公安机关查明该协会强迫交易、价格控制等事实。同时，建议公安机关向市场监管部门移送协会涉嫌垄断线索，积极配合市场监管部门调查取证，多次前往了解进展情况并交换意见。最终江西省市场监督管理局认定丰城市预拌混凝土协会构成垄断，决定对其罚款50万元；建议丰城市民政局依法撤销其社会团体法人登记；对协会会员企业责令停止违法行为，没收违法所得，并处2018年销售额3%-8%的罚款，合计罚没2.86亿元。
(二)检察建议促进行业治理，延伸职能助力行业清源。预拌混凝土是城市建设基础性材料，近年来，国家对发展预拌混凝土高度重视，出台了一系列政策法规支持保障预拌混凝土行业的快速发展。本案中，检察机关针对案件办理过程中发现的丰城市混凝土行业管理存在的问题，分别向相关行政主管部门发出检察建议，建议工信部门加强对非法混凝土搅拌站的查处力度、强化对混凝土行业的行为监管；建议住建部门加强预拌混凝土企业市场准入管理、开展预拌混凝土企业资质专项核查、加强预拌混凝土企业管理。相关行政主管部门启动了预拌混凝土生产企业集中整治工作，促进了当地预拌混凝土市场健康有序发展。
(三)破网打伞肃清壁垒，纪法衔接严惩“保护伞”。公职人员充当黑恶势力保护伞，通过选择性执法等方式包庇纵容，是导致丁某甲等人控制的协会垄断丰城混凝土市场的重要原因。检察机关与公安机关发现原丰城市市容环境监察大队大队长甘某某、大队长助理金某某等人充当“保护伞”的线索后，经共同研判后分别将相关线索移送宜春市纪委监委。市场监管部门也按照行政执法与纪检监察协同贯通要求，将相关线索移送宜春市纪委监委。后宜春市纪委监委对甘某某、金某某开除党籍、开除公职；检察机关对2人以纵容黑社会性质组织罪提起公诉，最终分别被判处有期徒刑三年六个月、一年十个月。
冯某、黄某某非国家工作人员受贿案
【关键词】
非国家工作人员受贿 公平竞争 宽严相济
【基本案情】
2017年7月至2020年5月，被告人冯某、黄某某分别担任北京S科技有限公司(以下简称S公司)外卖事业部华南区域经理和大客户销售经理。2017年，冯某、黄某某与“尊宝披萨”的全国市场营业部负责人王某某(另案处理)商定，由王某某按照每月15万元人民币支付“团建费用”给冯某、黄某某，冯某、黄某某则在降低S公司的抽成比例、提供优惠补贴、流量卡等方面对“尊宝披萨”提供帮助。2017年7月至2020年5月，王某某按照每月15万元标准转到黄某某指定的银行账号，共计转款人民币540万元。
2020年10月26日，广东省广州市天河区人民检察院以非国家工作人员受贿罪对冯某、黄某某提起公诉。2021年6月29日，广州市天河区人民法院作出一审判决，认定冯某、黄某某犯非国家工作人员受贿罪，均判处有期徒刑三年六个月，并处罚金人民币50万元。追缴冯某的违法所得268万元，黄某某违法所得272万元。2021年7月27日，冯某、黄某某提出上诉。2021年11月9月，广州市中级人民法院作出二审判决，维持一审判决对冯某、黄某某的定罪和量刑部分，认定冯某分得的赃款数额为260.5万元(原审判决认定为268万元)，予以追缴。
【检察机关履职过程】
引导侦查取证。在案件侦查阶段，检察机关引导侦查机关调取冯某、黄某某指定收款的涉案人员陈某某、黄某凤的银行账户流水，对每一期的数额进行核实，查清涉案金额。对同案人王某某是否属于单位犯罪直接负责的主管人员，要求侦查机关核实王某某行贿资金来源、对“尊宝披萨”相关人员进行询问。
审查起诉阶段。冯某、黄某某辩解称S公司与“尊宝披萨”的合作最终决定权均是由公司决策层决定，与两人所提供的帮助并没有直接必然联系；两人在本案中并没有违反公司规定操作，没有利用职务上的便利。检察机关全面审查在案证据，发现案发期间冯某、黄某某在非法收受财物后，利用职务上的便利，给“尊宝披萨”提供的补贴、超级流量卡分配占比较大，资源配置异常。冯某、黄某某违规为“尊宝比萨”配置巨额补贴、流量等倾斜政策的行为严重扰乱了S公司在华南区域的正常经营秩序，破坏市场公平竞争环境。两人是“尊宝披萨”业务的直接联系人和负责人，利用了职务上的便利。
冯某、黄某某均辩称自己属于从犯。通过银行流水、证人证言、同案人供述等材料，检察机关认定冯某是S公司华南区域相关业务负责人，是黄某某的上级，对于“尊宝披萨”相关的补贴费率、流量卡等有审批权限。黄某某作为大客户销售经理，直接负责“尊宝披萨”业务，与王某某直接洽谈受贿具体事宜。冯某、黄某某共同受贿的540万元基本由二人均分，二人在共同犯罪中所起的作用并无明显主从之分，依法认定二人均为主犯。
在核实资金来源、行贿目的基础上，检察机关依法追诉行贿企业以及该企业直接负责的主管人员王某某。鉴于王某某具有自首情节且认罪认罚，对王某某依法建议适用缓刑。
法庭审理阶段。在提起公诉后，检察机关引导被告人冯某在开庭前自愿认罪认罚，在律师的见证下签署《认罪认罚具结书》。积极引导两名被告人退赃，一审判决前，冯某退赃25万元、黄某某退赃270万元。
【典型意义】
(1) Play a leading role in pretrial and crack down on crimes in accordance with the law.
This case is a typical case where the personal illegal and criminal behavior of employees of an enterprise with a dominant market position affects the fair competition environment in the market. The operators on the platform highly rely on the S company platform for transactions, and the platform employees illegally provide preferential subsidies and traffic to the bribers after accepting bribes. With the help of cards, etc., the bribers gain an unfair competitive advantage, which seriously jeopardizes the fair competition environment in the relevant market.
The procuratorial organs should actively guide the investigation when handling cases of duty-related crimes by enterprises with dominant market positions, obtain evidence such as upstream capital flows, accurately locate the source of bribery funds, and consolidate the evidence base of the cases.
(2) Pay attention to social governance and promote industry compliance operations.
A healthy and compliant platform environment is crucial for operators on the platform and is an important part of building a fair competitive market environment.
In handling cases, the procuratorial organs, while handling cases in strict accordance with the law, pay special attention to the possible damage and impact of the criminal behavior of employees of large Internet platforms on the fair competition environment in the market, and formulate and issue procuratorial suggestions in a targeted manner, urging the platforms to further improve the internal control system. Strengthen the supervision of policies such as commission rates, traffic weighting, and platform subsidies, and take effective measures to prevent fraudulent behaviors by operators on the platform; at the same time, guide the platform to implement relevant national policies to protect small, medium and micro enterprises, and assist in the impact of the epidemic. The operators on the platform can get rid of the predicament and restore the vitality of the market.