Research On Conviction And Sentencing Of MLM Behavior From The Perspective Of Conjoint Theory

The promulgation of the "Criminal Law Amendment(7)" marks the end of the era of MLM behaviors "without a fixed place".The crime of organizing and leading MLM activities has become one of the crimes in China's "Criminal Law"..The Opinions on Several Issues Concerning the Application of Law to the Handling of Leading MLM Activities in Criminal Cases jointly issued by the Supreme People's Court,the Supreme People's Procuratorate,and the Ministry of Public Security in 2013 marked the maturity of criminal legislation against MLM.Since then,there have been inextricable links between the crime of organizing and leading MLM activities and the crime of fraud.Regarding the issue of conviction and sentencing for MLM,neither criminal law theory nor judicial practice has been able to completely shake off the shackles of the "mutual exclusion theory",and judicial interpretation has not been well implemented.How to accurately determine the crime of MLM behaviors has become an important issue to be solved urgently.This article will analyze the conviction and sentencing problem of MLM behavior from the perspective of co-operation theory,and put forward some opinions and suggestions,hoping to provide a reasonable solution to this problem.The first part of this article mainly introduces the origin of the conviction and sentencing of MLM behaviors.By analyzing the constituent elements of the crime of organizing and leading MLM activities,we can learn that because our criminal law provides for the "fraud of property" in the crime of organizing and leading MLM activities The crime constitutes an essential element,and the crime of organizing and leading a pyramid scheme activity essentially overlaps with fraud crimes.This article analyzes the problems in the current judicial practice through specific cases,and points out that the "mutual exclusion theory" has huge flaws.It is the "mutual exclusion theory" thinking that has led to the confusion of judicial organs' conviction of pyramid schemes,which in turn leads to confusion.The sentencing is unreasonable,so this theory should be abandoned.Therefore,the co-operation theory is the fundamental solution to this problem,because the opposition between laws and regulations is accidental,and co-operation is the norm,and the same is true for the crime of organizing and leading pyramid schemes and fraud crimes.The second part of this article shows the theoretical analysis of using conjoint theory to solve the problem of condemnation and sentencing of pyramid schemes.Cooperation theory is one of the most confusing and controversial areas in criminal law theory.There are many different theories on the types of co-operation and the criteria for distinguishing co-operation and imagination.In particular,the special relationship in the relationship between law and competition.According to the general theory,when the two laws are a special relationship,the principle of special law should be followed,but some scholars have boldly proposed that the law should be applied in special circumstances.the opinion of.Specifically return to the question of the relationship between the crime of organizing and leading MLM activities,the crime of fraud,and the crime of fundraising fraud.As far as the relationship between the crime of organizing and leading MLM activities and the crime of fraud is concerned,there are three kinds of theories in total: law and contention,imagination and collusion,and the opposite relationship.There are also three doctrines of the crime of organization,leadership of pyramid schemes,and the crime of fund-raising fraud,namely the law and competition theory,the imagination and competition theory and the opposite relationship theory.As long as you carefully analyze the constituent elements of the crime of organizing and leading MLM activities and crimes of fraud,and clarify the logical relationship between the two,especially after clarifying the essence of the constituent elements of "defrauding property",you can conclude that: 2.The crime of leading pyramid schemes is a special law of fund-raising fraud and fraud,and there is a special relationship between the two.However,judicial interpretations stipulate that when an act constitutes both the crime of organizing and leading MLM activities and the crime of fundraising fraud,the conviction and sentencing shall be carried out in accordance with the law with a heavier penalty,and the maximum legal sentence for the crime of fraud and fundraising fraud is life imprisonment.It is much higher than the statutory maximum sentence of 15 years in prison for organizing and leading a pyramid scheme.Based on the above analysis,the third part of this paper proposes specific methods to solve this problem.According to the common understanding,the crime of organizing and leading MLM activities is not less harmful than the crime of fraud.So if you want to admit that there is a special relationship between them,you must violate the principle of adaptability of crimes,punishments and punishments.The rules of interpretation contradict.The criminal law's penalties for organizing and leading MLM activities are reasonable,because the standards for penalties are set based on the degree of infringement of the main legal interests protected by this article in this type of behavior;at the same time,the traditional "special law takes precedence" It is not a matter of course.In some special cases,the application of heavy law is also in line with the legal principle of criminal punishment.Whether or not a crime is listed in a judgment or whether a law is effective depends mainly on the actual situation of the case and the fact that legal interests have been violated.Therefore,it is the way to solve the condemnation and sentencing of pyramid schemes by applying the theory of non-strict distinction between law and competition and imagination and cooperation,and adopting the principle of one felony.At the same time,the use of the grand competition theory does not cause the problem of "empty" charges.In short,the principle of adapting crimes to liability,punishment and punishment is the fundamental principle to solve the problem of conviction and sentencing of pyramid schemes,which is also the need for substantial justice.In line with the demands of judicial justice.