| Seven Model Cases of “Carrying forward the Spirit of the Constitution and Implementing the Provisions of the Constitution” Published by the Supreme People's Procuratorate | | 最高人民检察院发布7起“弘扬宪法精神 落实宪法规定”典型案例 |
| (December 3, 2019) | | （2019年12月03日） |
| On December 3, 2019, the Supreme People's Procuratorate held the 33rd procuratorial open day event with the theme around "carrying forward the spirit of the Constitution and modernizing China's governance system and capacity", and released a batch of model cases of "carrying forward the spirit of the Constitution and implementing the provisions of the Constitution". | | 12月3日，最高检举办主题为“弘扬宪法精神，推进国家治理体系和治理能力现代化”的第33次检察开放日活动，并发布了“弘扬宪法精神 落实宪法规定”典型案例。 |
| Model Cases of “Carrying forward the Spirit of the Constitution and Implementing the Provisions of the Constitution” | | “弘扬宪法精神 落实宪法规定”典型案例 |
| I. Serving and safeguarding sound development of the non-public sectors of the economy | | 一、服务保障非公有制经济健康发展 |
| Article 11 of the Constitution of the People's Republic of China provides that “The state protects the lawful rights and interests of the non-public sectors of the economy, including individual and private sectors of the economy. The state encourages, supports, and guides the development of the non-public sectors of the economy.” | | 《中华人民共和国宪法》第十一条规定：国家保护个体经济、私营经济等非公有制经济的合法的权利和权益。国家鼓励、支持和引导非公有制经济的发展。 |
| In the following case, the procuratorial organ took the initiative to assign procuratorial personnel to intervene in advance, distinguished counterfeit and inferior products from innovative products, promoted the establishment of emerging industry standards, and protected the lawful rights and interests of the non-public sectors of the economy. | | 下面案例中，检察机关主动派员提前介入，辨别伪劣产品与创新产品，推动新兴行业标准确立，保护非公有制经济的合法权利和权益。 |
| People v. Liu for production and sale of counterfeit and inferior products | | 刘某生产、销售伪劣产品案 |
| [Key Point] | | 【要旨】 |
| Starting from verifying the basic case facts, the procuratorial organ has handled the case with the idea of serving the economic development and supporting enterprises in making innovations, promoted the sound and standardized development of the industry, driven the generation of a new industrial standard by handling the case, and achieved the unification of “legal effects, political effects, and social effects.” | | 检察机关从核实案件基本事实出发，以服务经济发展、支持企业创新的理念办案，促进行业健康规范发展，办理一案推动一个新的行业标准产生，达到了法律、政治、社会“三个效果”统一。 |
| [Basic Facts] | | 【基本案情】 |
| On October 26, 2017, Zhejiang __ Industry and Trade Co., Ltd. produced 48 sets of electric treadmills (T600D), with the sales amount of CNY57,600. It was found upon sampling inspection that three indicators of the aforesaid electric treadmills did not conform to the product standards and they were determined as sub-quality products. | | 2017年10月26日，浙江某工贸有限公司生产T600D型电动跑步机48台，销售金额为5.76万元。经抽样检测，上述电动跑步机有3项指标不符合产品标准，被判定为不合格。 |
| From November to December 2017, the Company researched and developed an innovative product, smart flat sport walking treadmill (hereinafter referred to as the “walking treadmill”), and sold it in the name of a sport walking treadmill, with the sales amount of over CNY7.01 million. It was found upon sampling inspection that the inspected items of the aforesaid walking treadmill conformed to the national standard for stationary fitness equipment, but there were three indicators that did not conform to the national standard for treadmills, and the aforesaid walking treadmill was determined as a sub-quality product. | | 2017年11月至12月，该公司通过研发创新产品智能平板健走跑步机（以下称走步机），对外以健走跑步机名义进行销售，销售金额达701万余元。经抽样检测，上述走步机所检项目符合固定式健身器材的国家标准，但有三项指标不符合跑步机的国家标准，被判定为不合格。 |
| [Case Handling Process] | | 【案件办理情况】 |
| In February 2018, the public security organ placed this case on file for investigation into Liu, the operator of the Company, for being suspected of a crime of producing and selling counterfeit and inferior products. In December 2018, this case was transferred to the procuratorial organ for prosecution. Upon examination, the procuratorial organ returned this case for supplementary investigation twice according to the law. | | 2018年2月，公安机关以涉嫌生产、销售伪劣产品罪对该公司经营者刘某立案侦查。2018年12月，该案移送检察机关审查起诉。检察机关经审查，依法退回补充侦查2次。 |
| The procuratorial organ held upon examination that the walking treadmills produced by Liu's company were innovative products rather than counterfeit and inferior products and the production and sale of such walking treadmills should not be determined as a crime. The production and sale of 48 sets of sub-quality electric treadmills by the Company has constituted a crime of producing and selling counterfeit and inferior products. However, the sales amount was only over CNY50,000, reflecting minor subjective malice. In addition, no personal injury or property damage was identified upon investigation and the social harm was relatively small. The Company operated by Liu was an innovative enterprise, which was in the critical period for upgrading and development. By taking into full account of various factors, in April 2019, the procuratorial organ made a decision to not lodge a public prosecution against Liu. | | 检察机关经审查认为，刘某公司生产的走步机系创新产品，而非伪劣产品，对该部分事实不认定为犯罪。该公司之前生产、销售的48台不合格电动跑步机的行为已构成生产、销售伪劣产品罪，但销售金额仅5万余元、主观恶性较小，且经调查未发现消费者人身、财产受损的情况，社会危害性较小。刘某经营的公司属于创新型企业，正处于升级发展的关键期。检察机关综合考虑各种因素，于2019年4月对刘某作出相对不起诉决定。 |
| [Significance] | | 【典型意义】 |
| In the course of case handling, the procuratorial organ intervened in advance and under the circumstances where the basic case facts have been basically found and main evidence has been fixed, considering that Liu was the person in charge of the enterprise, it proposed that the public security organ should use the custody measure with caution from the perspective of guaranteeing the normal operation of the enterprise. The procuratorial organ paid attention to grasping the nature of the case and the constitution of the relevant crime, specified the focal disputes through conscientious review, and determined through investigation in various ways that the walking treadmills involved had significant differences with conventional treadmills in terms of the running speed and product structure and it was inappropriate to directly determine that the walking treadmills involved were sub-quality ones according to the national compulsory standards for treadmills. In the course of case handling, the procuratorial organ did not blindly admit the Technical Inspection Report in which the products involved were determined as sub-quality ones, took the initiative to intervene, went around in an in-depth manner, conscientiously researched and judged, safeguarded the lawful rights and interests of the parties, guaranteed the normal operation of the private enterprise, and maintained a good environment for the development of the private enterprise. Concurrently, by urging the enterprise to improve the enterprise standard, report for archival purposes as required, and take the initiative to consult with the competent industrial department and supervisory department, the procuratorial organ promoted the industrial department to provide professional advice, specified the national standard applicable to walking treadmills, and promoted the sound and standardized development of the industry. | | 案件办理过程中，检察机关及时提前介入，在案件事实已基本查清，主要证据已固定的情况下，考虑刘某系企业负责人，从保障企业正常经营角度出发，建议公安机关慎用羁押措施。注意把握案件性质和相关犯罪的构成，通过认真梳理，明确了争议焦点，通过多方调查认定涉案走步机在运行速度、产品结构等方面均与传统跑步机存在显著区别，不宜根据跑步机的国家强制性标准径行认定涉案走步机不合格。该案办理过程中，检察机关不盲目采信判定产品不合格的《技术检测报告》，主动介入、深入走访、认真研判，保护当事人的合法权益，保障民营企业正常经营，维护民营企业发展的良好环境。同时，检察机关通过督促企业完善企业标准及按规定上报备案、主动与行业主管及监管部门会商研究等，推动行业部门提供专业意见，明确了走步机适用的国家标准，促进了行业的健康规范发展。 |
| II. Punishing pyramid sale according to the law and maintaining social and economic order | | 二、依法惩治传销，维护社会经济秩序 |
| Article 13 of the Constitution of the People's Republic of China provides that “The lawful private property of citizens may not be encroached upon. The state protects by law the right of citizens to own private property.” | | 《中华人民共和国宪法》第十三条规定：公民的合法的私有财产不受侵犯，国家依照法律规定保护公民的私有财产权。 |
| Article 15 of the Constitution of the People's Republic of China provides that “The state prohibits in accordance with the law any organization or individual from disturbing the social-economic order.” | | 《中华人民共和国宪法》第十五条规定：国家依法禁止任何组织或者个人扰乱社会经济秩序。 |
| In the following case, the procuratorial organ saw through a fraud of BTC pyramid sale, legally lodged a public prosecution in the court in a timely manner on the ground of suspected crime of organizing and leading pyramid sale activities, and protected the legitimate private properties of citizens from being encroached upon. | | 下面案例中，检察机关识破比特币传销骗局，及时以涉嫌组织、领导传销活动罪依法向法院提起公诉，保护公民合法私有财产不受侵犯。 |
| People v. Lu, Cheng, et al. for organizing and leading pyramid sale activities by using a “virtual currency” | | 卢某某、成某某等人利用“虚拟货币”组织、领导传销活动案 |
| [Key Point] | | 【要旨】 |
| The procuratorial organ has seen through a crime of fraud and pyramid sale committed by some criminals with “blockchain,” “virtual currencies,” “consumption and investment,” “charity and mutual assistance” and other new terms and concepts as stunts and high returns as baits and legally cracked down on acts of encroachment upon people's property rights and interests. | | 检察机关识破一些不法分子以“区块链”“虚拟货币”“消费投资”“慈善互助”等新名词、新概念为噱头，以高额回报为诱饵进行的诈骗传销犯罪，依法打击侵害人民群众财产权益的行为。 |
| [Basic Facts] | | 【基本案情】 |
| In September 2015, seeing “virtual currency” and other hot concepts, Lu, Cheng, and other persons set up __ Science and Technology Co., Ltd. and they jointly deliberated the bonus system of GGP Win-win Points, recruited members in the name of making investment and purchasing products, determined the membership levels (general membership, silver membership, gold membership, and diamond membership) according to the amounts of funds invested, and released the corresponding GGP at the proportion of 5:1 between the amount of funds invested and the GGP, and such GGP may be traded in cash on the website of BTC100. At the same time, for the purpose of recruiting more subordinates, the Company set such awards as recommendation award, mutual assistance award, management award, and level award and granted members bonuses at variable proportions according to the membership levels and the management levels. It was found upon investigation that there were 30 levels in the pyramid sale network involved, over 10,000 member accounts were involved, and the amount of funds involved was over CNY320 million. | | 2015年9月，卢某某、成某某等人看到“虚拟货币”等概念火爆，设立某科技有限公司，共同商议设立GGP共赢积分奖金制度，以投资购买产品的名义发展会员，并按照投资金额的多少确定会员级别，设普卡、银卡、金卡、钻卡四种，以投资额5：1的比例释放相应的GGP积分，可以在BTC100网站上交易变现。同时，为了发展更多下线，公司设置推荐奖、互助奖、管理奖、平级奖，并按照会员级别、管理级别给予会员不同比例的奖金。经查，该传销网络共计30个层级，涉及会员账号1万余个，涉案金额共计人民币3.2亿余元。 |
| [Case Handling Process] | | 【案件办理情况】 |
| The procuratorial organ lodged a public prosecution against Lu, Cheng, and other nine persons on the ground that they were suspected of a crime of organizing and leading pyramid sale activities. In September 2019, the court entered a judgment that Lu, Cheng, and other nine defendants should be sentenced to fixed-term imprisonments ranging from two to five years and imposed on fines. | | 检察机关以卢某某、成某某等11人涉嫌组织、领导传销活动罪向法院提起公诉。2019年9月，法院对本案作出判决，判处卢某某、成某某等11名被告人两至五年不等有期徒刑，并处罚金。 |
| [Significance] | | 【典型意义】 |
| In pyramid sale activities, the number of members recruited is directly or indirectly used as the basis for calculating remunerations or bonuses. The acts of inducing or intimidating participants to carry on recruiting members for the purpose of defrauding properties have disturbed the economic and social order and impaired the lawful rights and interests of the people. With “blockchain,” “virtual currencies,” “consumption and investment,” “charity and mutual assistance,” and other new terms and concepts as stunts and high returns as baits, some criminals have attracted ordinary people to participate in such activities through various publicity and trainings. These complex criminal means, especially various financial investment business in the name of “financial innovation,” have high confusability and are difficult to identify. Ordinary people may be easily swindled, resulting in economic losses, and such criminal means have seriously disturbed the social and economic order. By severely cracking down on pyramid sale, fraud, illegal fund-raising, and other crimes with new concepts as stunts, the procuratorial organ has demonstrated the reverence for the law, effectively safeguarded the properties of the people, and maintained good social and economic order. | | 传销活动直接或间接以发展人员的数量作为计酬或者返利依据，引诱、胁迫参加者继续发展他人参加，骗取财物，扰乱经济社会秩序，损害人民群众的合法权益。一些不法分子以“区块链”“虚拟货币”“消费投资”“慈善互助”等新名词、新概念为噱头，以高额回报为诱饵，通过各种宣传培训吸引老百姓参与其中。这些纷繁复杂的犯罪手段，特别是以“金融创新”等名义开展的各类金融投资业务，迷惑性强、难以识别，群众容易上当受骗，造成经济损失，严重扰乱社会经济秩序。检察机关通过严厉打击这类以新概念为噱头的传销、诈骗、非法集资犯罪，彰显法律的威严，切实维护人民群众的财产，维护良好的社会经济秩序。 |
| III. Protecting the people's health through administrative public interest litigation | | 三、通过行政公益诉讼保护人民健康 |
Article 21 of the Constitution of the People's Republic of China provides that “The state develops medical and health services, promotes modern medicine and traditional Chinese medicine, ..., all for the protection of the people's health."
．．．．．． | | 《中华人民共和国宪法》第二十一条规定：国家发展医疗卫生事业，发展现代医药和我国传统医药，……保护人民健康。
．．．．．． |
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