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People's Procuratorate of Jiangning District of Nanjing City, Jiangsu Province v. Dong Jie and Chen Zhu (crime of illegal business operation)
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江苏省南京市江宁区人民检察院诉董杰、陈珠非法经营案
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People's Procuratorate of Jiangning District of Nanjing City, Jiangsu Province v. Dong Jie and Chen Zhu (crime of illegal business operation)
(crime of illegal business operation)
江苏省南京市江宁区人民检察院诉董杰、陈珠非法经营案
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People's Procuratorate of Jiangning District of Nanjing City, Jiangsu Province v. Dong Jie and Chen Zhu
(crime of illegal business operation) | | 江苏省南京市江宁区人民检察院诉董杰、陈珠非法经营案 |
[Summary] | |
[裁判摘要] |
The use of external software to conduct illegal business operations, including upgrading power levels for gamers, if serious, falls within the meaning of “illegal business operations otherwise seriously disturbing the market order” as set out in Article 225 of the Criminal Law of the People's Republic of China, and the violators shall be convicted and punished for the crime of illegal business operation. | |
利用“外挂”软件“代练升级”从事非法经营活动，情节严重的，属于《中华人民共和国刑法》第二百二十五条中规定的“其他严重扰乱市场秩序的非法经营行为”，应以非法经营罪定罪处罚。 |
BASIC FACTS | |
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Public prosecution organ: People's Procuratorate of Jiangning District of Nanjing City, Jiangsu Province | |
公诉机关：江苏省南京市江宁区人民检察院。 |
Defendant: Dong Jie, male, 37, Han ethnicity, senior high school education, sole proprietor, residing at Green Home Community, Qilin Sub-district, Jiangning District, Nanjing City, and arrested on January 15, 2008 for involvement in this case. | |
被告人：董杰。因本案于2008年1月15日被逮捕。 |
Defendant: Chen Zhu, female, 38, Han ethnicity, junior high school education, sole proprietor, residing at Green Home Community, Qilin Sub-district, Jiangning District, Nanjing City, and granted bail on December 8, 2007 for involvement in this case. | |
被告人：陈珠。因本案于2007年12月8日被取保候审。 |
The People's Procuratorate of Jiangning District of Nanjing City instituted a public prosecution in the People's Court of Jiangning District of Nanjing City against Dong Jie and Chen Zhu for the crime of illegal business operation. | |
江苏省南京市江宁人民检察院以被告人董杰、陈珠犯非法经营罪向江苏省南京市江宁区人民法院提起公诉。 |
The indictment alleged that: Since 2006, Dong Jie and Chen Zhu, who learned in playing online games that they could make money by using illegally external programs to upgrade power levels for gamers, had provided power level upgrading service for gamers by purchasing dozens of computers, applying for QQ account numbers, bank account numbers, customer service hotlines and telecom broadband and purchasing external software. From September 2006 to the Spring Festival of 2007, for profits, Dong Jie and Chen Zhu hired some people to use an external program called “Little Goldfish” purchased from a third party to help at their residences the “Legend of Mir” gamers upgrade their roles. In March 2007, Dong Jie and Chen Zhu purchased another external program online called “Legend of Freezing Point” and, in the name of Native Tribe Studio, hired some people to help gamers with power level upgrading in the “Legend of Mir” game operated by Shanghai Shanda Networking Development Co. Ltd. by using the external program called “Legend of Freezing Point” at the rates of 80 yuan per week and 300 yuan per month. More than 10,000 accounts of the “Legend of Mir” game received their power level upgrading service. From March 2007 to December 7, 2007, Dong Jie and Chen Zhu received a total of 1,989,308.6 yuan remitted by gamers from across the country. Because the external program called “Legend of Freezing Point” used by Dong Jie and Chen Zhu bypassed the normal communication protocol between the game's customer service and server and disabled the customer authentication function of the computer system of Shanghai Shanda Networking Development Co. Ltd., the normal operation of the “Legend of Mir” game was disrupted. The external program also violated the balance and fairness requirement of the online game rules, caused dissatisfaction and complaints from many gamers, and severely affected the business operation of Shanghai Shanda Networking Development Co. Ltd. | |
起诉书指控：2006年以来，被告人董杰、陈珠在玩网络游戏过程中了解到利用非法“外挂”程序可以替游戏玩家代练升级并可以从中牟利，遂购买了数十台电脑，申请了QQ号、银行账号、客服电话和电信宽带，向他人购买“外挂”经营代练升级。2006年9月至2007年春节，董杰、陈珠雇佣人员在其居住地，通过使用向他人购得的名为“小金鱼”的“外挂”帮助《热血传奇》游戏玩家升级并牟利。2007年3月，董杰、陈珠又通过互联网向他人购得名为“冰点传奇”的“外挂”程序，以“土人部落”工作室的名义，雇佣员工在上海盛大网络发展有限公司经营的《热血传奇》游戏中以80元／周、 300元／月的价格帮助玩家使用“冰点传奇”“外挂”程序代练升级，先后替1万多个《热血传奇》游戏账户代练升级。自2007年3月至2007年12月7日，接受来自全国各地游戏玩家汇入的资金人民币1 989 308．6元。因董杰、陈珠使用的“冰点传奇”“外挂”程序绕过了正常的游戏客服端与服务器端之间的通讯协议，使盛大公司计算机系统中的客户认证功能丧失，从而干扰了《热血传奇》游戏的正常运行。同时，又因破坏了网络游戏规则的均衡和公平，引起了众多游戏玩家的不满和投诉，严重影响了盛大公司的生产经营秩序。 |
Dong Jie pleaded that: (1) The facts alleged by the public prosecution organ were basically true, but he disagreed on the crime that he was accused of. (2) In his previous confession, he shifted part of his liabilities to his wife, Chen Zhu, who actually did not know that she was using the external program called “Legend of Freezing Point” until April or May of 2007 and went to the labor market with him only to hire a nanny. | |
被告人董杰辩称：1．公诉机关指控的事实基本属实，但对指控的犯罪不能认同。 2．自己以前的供述把部分责任推到妻子被告人陈珠身上，其实陈珠到2007年4、5月份才知道自己使用“冰点传奇”“外挂”。陈珠与自己去劳务市场仅仅是招保姆。 |
Dong Jie's defense counsel argued that: The evidence for accusing Dong Jie of the crime of illegal business operation was insufficient and the application of law was incorrect. The reasons were as follows: (1) The object damaged by the crime of illegal business operation was the state's administration of the market transaction order rather than the business operation of a particular company. The public prosecution organ charged Dong Jie with disrupting the normal operation of the “Legend of Mir” game and seriously affecting the business operation of Shanghai Shanda Networking Development Co. Ltd. The damaging consequences of the acts of Dong Jie as alleged by the public prosecution organ were inconsistent with the crime that he was accused of. (2) The “violation of state provisions” as mentioned in Article 225 of the “Criminal Law” only meant relevant state provisions on the administration of the market transaction order. The Administrative Measures for the Security Protection of the International Connection of Computer Information Networks, the Regulation on the Safety Protection of Computer Information Systems, and the Regulation on the Protection of the Right of Dissemination on Information Network cited by the public prosecutor in court debate were all not laws and regulations of the state on the administration of the market transaction order and could not be used to charge Dong Jie with the crime of illegal business operation. (3) The acts of Dong Jie also did not fall within the acts that may constitute the alleged crime in the aforesaid three regulations as cited by the public prosecutor. | |
被告人董杰辩护人的辩护意见为：公诉机关指控董杰构成非法经营罪证据不足、法律适用不当。理由如下：1．非法经营罪侵害的客体是国家对市场交易秩序的管理，而不能是对某一个企业生产经营秩序的侵犯。公诉机关指控董杰行为的危害后果是干扰了热血传奇游戏的正常运行，严重影响了盛大公司的生产经营秩序，故指控董杰犯罪行为的危害后果与其指控的罪名是相互矛盾的。2．《刑法》第225条所规定的“违反国家规定”只能是国家关于市场交易秩序管理的有关规定，公诉人在法庭辩论中所提出的《计算机信息网络国际联网安全保护管理办法》、《计算机信息系统安全保护条例》和《信息网络传播权保护条例》均不是国家关于市场交易秩序管理的法律法规，不能作为指控董杰构成非法经营罪的法律规定。3．董杰的行为也不符合上述公诉人所提的上述三个法规中所称的可构成犯罪的行为。 |
Chen Zhu pleaded that: She did not take part in the business of Dong Jie as she was pregnant during that period, and the QQ chat records extracted by the public security authority could not prove her participation. She previously confessed to her crime to the public security authority because she just gave birth to her child and wanted to help Dong Jie with him bail, but she finally decided to tell the truth. | |
被告人陈珠辩称：自己当时怀孕没有参与被告人董杰的事情，公安机关提取的 QQ聊天记录不能证明自己参与，以前在公安机关供述参与是因为小孩刚生下来，为了能让董杰取保候审，就将此事揽到自己身上，但最后自己就说实话了。 |
Chen Zhu's defense counsel argued that: The evidence for charging Chen Zhu with participating in the illegal business operation was insufficient, and her acts did not constitute the crime of illegal business operation. The reasons were as follows: (1) The nature of this case was wrongly determined. Whether an illegal business operation was a general illegal act or a crime of illegal business operation should be dependent on whether it violated state provisions. The “power level upgrading” service with which Chen Zhu was charged was neither an article that required a special license from a relevant state department for dealership or sale nor an article with trading restrictions in accordance with laws and administrative regulations of China. None of the relevant regulations mentioned by the public prosecutor was regarding a license system or a market access system. Therefore, Chen Zhu was engaged in business operations without obtaining a business license, which only violated the provisions on industrial and commercial administration and did not constitute a crime. The existing laws and administrative regulations did not provide that undermining technical protection measures was a criminal offense. The public prosecutor also failed to provide any legal basis to prove that the circumstances of this case were “especially serious.” (2) Chen Zhu did not implement any illegal operation activity. Chen Zhu became pregnant in February 2007 and was not in a condition to participate in the business operation. Purchase of equipment, application for broadband, opening of bank accounts, and recruitment and management of employee were all conducted by Dong Jie without the participation of Chen Zhu. The inconsistent confessions of both defendants could not be used as evidence to determine Chen Zhu's participation in the illegal business operation. | |
被告人陈珠辩护人的辩护意见为：指控陈珠参与非法经营的证据不足，被告人不构成非法经营罪。理由如下：1．本案定性错误。非法经营行为是一般违法行为还是构成非法经营罪，要以行为是否违反国家规定为平衡点。陈珠被指控的“代练升级”经营行为不是我国法律、行政法规规定的需要经过国家相关部门特别许可方可专营、专卖的物品，也不是法律、行政法规规定的需要限制买卖的物品。公诉人提及的相关法规均不是关于许可证制度或市场准入制度的规定，因此陈珠没有取得工商营业执照从事经营活动，仅仅违反了工商行政管理规定，不属于犯罪行为。现有的法律、行政法规也未规定破坏技术保护措施的行为属于犯罪。公诉人也未提供任何法条依据证明本案已达到“情节特别严重”。 2．陈珠未实施非法经营行为。陈珠于2007年2月怀孕，身体状况不具备参与经营的条件。购买设备、申请宽带、开设银行账号、招聘及管理员工均由被告人董杰实施，陈珠未参与。两被告人前后供述不一致，不能作为陈珠参与经营的定案证据。 |
The People's Court of Jiangning District of Nanjing City, Jiangsu Province, the court of first instance, found that: | |
江苏省南京市江宁区人民法院一审查明： |
Dong Jie and Chen Zhu learned in playing online games that they could make money by illegally using external programs to help gamers with “power level upgrading,” They purchased online an external program called “Legend of Freezing Point” from another person (with the online nickname of Brother La) and negotiated with Brother La, the seller of the program, over cooperation on “power level upgrading” with the external software, in which Brother La would provide the external program and the two defendants would be responsible for power level upgrading and collection charges. From March 2007, Dong Jie and Chen Chu purchased over 90 computers, applied for telecom broadband, and fraudulently used the identities of “Cai Hong” and “Zeng Liqiong” to apply for banking cards and customer service hotlines, for the purposes of contacting gamers and collecting power level upgrading charges. They hired 12 employees and published advertisements continuously in the “Legend of Mir” game operated by Shanghai Shanda Networking Development Co. Ltd. in the name of Native Tribe Studio at their residence (No. 2, Building 30, Green Home Community, Qilin Sub-district, Jiangning District, Nanjing City), helping gamers with power level upgrading by using the external program called Legend of Freezing Point at the rates of 80 yuan per week and 300 yuan per month. The employees of Dong Jie and Chen Zhu were divided into a customer service group and a power level upgrading group to use the external software called “Legend of Freezing Point” to provide power level upgrading service day in and day out, and they contacted Brother La from time to time to upgrade versions and combat the game protection measures of Shanghai Shanda Networking Development Co. Ltd. Until the case was exposed, they had helped over 10,000 gamer accounts of the “Legend of Mir” game with power level upgrading. From March 2007 to December 7, 2007, both defendants received a large amount of power level upgrading charged remitted by gamers from across the country. Through the banking account under the name of “Zhang Wuqiang” alone, both defendants had remitted over 1.3 million yuan to Brother La, the seller of the external program called “Legend of Freezing Point.” | |
被告人董杰、陈珠在玩网络游戏过程中了解到利用非法“外挂”程序可以替游戏玩家“代练升级”并从中牟利，遂通过互联网向他人(网名“拉哥”)购买名为“冰点传奇”的“外挂”程序，并与该程序卖家“拉哥”协商合作利用“外挂”进行游戏代练，由“拉哥”提供“外挂”程序，由二被告人负责代练及收费。2007年3月以来，董杰、陈珠陆续购置了九十多台电脑，申请了电信宽带，并冒用“蔡红”、“曾莉琼”的身份办理了银行卡、客服电话，用于和游戏玩家联系及收取代练费。二被告人先后雇佣了十二名员工，在其居住的南京市江宁区麒麟街道绿色家园30幢2号家中以“土人部落工作室”的名义，不断在盛大公司经营的《热血传奇》游戏中做广告，以80元／周、300元／月等价格帮助游戏玩家使用“冰点传奇”的“外挂”程序代练升级。董杰、陈珠将雇佣来的员工分成客服组和代练组利用“外挂”软件“冰点传奇”日夜经营代练，并适时与“外挂”程序卖家“拉哥”联系进行版本升级，以对抗盛大公司游戏保护措施。至案发时止，已先后替1万多个《热血传奇》游戏玩家的账户代练升级。自2007年3月至2007年12月7日，二被告人收取了全国各地游戏玩家汇入的巨额代练资金，其二人仅通过户名为“张五强”的银行账户向“冰点传奇”“外 挂”程序卖家“拉哥”汇去的费用就达130多万元。 |
It was also found that the “Legend of Freezing Point”, the external program of Native Tribe Studio, was directly connected to the game server, and the same computer could simultaneously run multiple “Legend of Freezing Point” programs. The “Legend of Freezing Point” program could be used to log on to multiple accounts of the “Legend of Mir” game. The external program could, by cracking the game packet encryption and decryption algorithms, screening game instructions and data structures, cracking and converting game map files, and other means and by sending network data packets to attack and invade the game server, increase and modify the users' survival and growth experiences in the parameters database. The external program modified the information stored on the server regarding users playing the “Legend of Mir” game and helped such users automate circulative operations. The external program called “Legend of Freezing Point” used by Dong Jie and Chen Zhu bypassed the normal communication protocol between the game's customer-service and server and disabled the customer authentication function of the computer system of Shanghai Shanda Networking Development Co. Ltd, thus disrupting the normal operation of the “Legend of Mir” game, damaging the rules of the online game and severely affecting the business operation of Shanghai Shanda Networking Development Co. Ltd.
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另查明，“土人部落工作室”的“外挂”--“冰点传奇”是使用“外挂”程序直接连接游戏服务器，同一台计算机可同时运行多个“冰点传奇”程序。利用“冰点传奇”程序可同时登陆多个《热血传奇》网络游戏账号。该“外挂”程序通过游戏封包的加密与解密算法的破解、游戏指令与数据结构的筛查、游戏地图文件的破解与转换等方法，通过发送网络数据包攻击、入侵游戏服务器，以达到增加和修改使用用户游戏的参数数据库里生存和成长的过程体验。该“外挂”程序修改了盛大公司《热血传奇》游戏的使用用户在服务器上的内容，帮助《热血传奇》游戏的使用用户完成自动化循环操作。因被告人董杰、陈珠使用的“冰点传奇”“外挂”程序绕过了正常的游戏客服端与服务器端之间的通讯协议，使盛大公司计算机系统中正常的客户认证功能受损，从而干扰了《热血传奇》游戏的正常运行，同时破坏了网络游戏规则，严重影响了盛大公司的生产经营秩序。
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