Recently, Beijing King&Capital Law Firm lawyer Weng Xiaoping was entrusted to act as a defender in the case of suspected fraud and infringement of citizens' personal information crime in the field of sales of proprietary Chinese medicines on the Internet, and formed a team of lawyers in collaboration with a number of criminal lawyers in Beijing, the location of the enterprise as well as the place where the case took place.
The public security organs of this case alleged that the amount of crime is particularly huge, transferred to the examination and prosecution, due to the case is significant, complex, the procuratorial organs to extend the examination and prosecution period 3 times, due to the facts are not clear, the evidence is insufficient, returned to the public security organs to supplement the investigation of 2 times.
During this period, the lawyer team through an in-depth understanding of the case, invite Chinese medicine expert argumentation, a comprehensive review of the audit report, fully analyze the application of the law, etc., multi-pronged, after nearly a year, and ultimately received the decision not to prosecute the whole case, the case was successfully concluded.
This successful result not only cleared the haze of criminal offenses for the parties concerned, but also achieved the optimal solution within the legal framework, and more through the successful case practice, provided a sample and crack path with great reference value for the industry common problem of clarifying the boundaries of drug marketing compliance, the connection between the execution of criminal law and the scale of intervention of criminal law.
The defense of this case mainly focuses on whether the drugs involved have real efficacy, whether the conclusion of the audit report is accurate, and how to define the scope of personal information of citizens and other core controversies. Through legal characterization, evidence dismantling and jurisprudence analysis, the legal team constructed a layer-by-layer system for the defense of innocence.
First, digging into the professional barriers: through the authoritative argumentation of Chinese medicine experts, to prove that the drugs in question have real curative effects, this case does not constitute a crime of fraud.
Drugs often involve multiple intersection of medical science, clinical practice and law, characterization is extremely complex. In this case, the public security organs accused of the drugs involved do not have real therapeutic effects, the perpetrators of false propaganda, “luring” the victim to buy drugs, fictitious treatment, suspected of fraud, the above allegations, in fact, failed to objectively analyze the characteristics of traditional Chinese medicine results.
In order to clarify this core issue, the lawyer team adopted a three-dimensional strategy:
First, in-depth canonical verification, access to authoritative works on Chinese medicine, confirming that the drug formulations involved are normal Chinese medicine formula, with clear traditional efficacy, is not a fake drug.
Second, the organization of expert argumentation, for the clinical experience in Chinese medicine diagnosis and treatment, analysis of the effectiveness of drugs in different individuals and the application of the conditions of the different reactions, in order to confirm that the parties in this case on the effectiveness of the drugs of the different expressions are not completely out of the drug itself, the basis of the utility of the drug.
Third, accurate case comparison, through the search, study and analysis of the drug field crime of the case and not guilty of the case, analysis of the differences, in-depth demonstration of administrative violations, civil fraud and criminal law fraud in the essential difference, that should be strictly differentiated from the application of the law.
Second, the core evidence: a comprehensive review of the audit report, arguing that it does not have the ability to evidence, shall not be used as the basis for the case.
The audit report found that the amount involved in this case is hundreds of millions of dollars, the public security organs accused of profit margin of up to 90%. Lawyer team in a comprehensive review of the audit report, found that whether in the form, procedure or audit the scope of the substance, calculation and professional identification, there are fundamental flaws, one by one, the audit report of the problems, suggested that the procuratorial organs of the content of its prudent adoption.
Third, limit the harm of behavior: arguing that personal information use specific, single source, not in line with the criminal law to protect the characteristics of citizens' personal information
Regarding the charge of violating citizens' personal information, the legal team believes that the case is special and the personal information involved is significantly different from the citizens' personal information that the criminal law was originally designed to protect. Even if there is harm, the social harm is far less than a typical crime of infringing on citizens' personal information, and should be treated differently, and should not be treated as a criminal offense, in order to reflect the principle of prudent sentencing and the criminal policy of leniency and proportionality.
Fourth, conclusion and feelings
After nearly a year of running around, communication and the unremitting efforts of many parties, the procuratorial authorities believe that the existing evidence can not determine whether the efficacy of the product is fictitious, the facts and evidence of the crime of fraud are doubtful; access to customer contact information in the sales of the online store objectively exists, and the social harm is relatively small, and ultimately made a decision not to prosecute the whole case.
It should be said, it is the procuratorial organs dare to take responsibility, according to law, seriously listen to the lawyer, this case can achieve good results in effective defense.
Finally, as a defense attorney, we would like to emphasize that, for this kind of case, must strictly distinguish between administrative violations, civil fraud and criminal offences of the essential difference, for the best breakthrough in effective defense. The work of a defender is to assist the judicial authorities in accurately defining the legal nature of the acts involved in the case with sincere professional ability, to walk side by side with the client, and to resolutely defend the client's legitimate rights and interests.
Admittedly, we also hope that the judiciary should not become a shackle that stifles market vitality, but rather a strong safeguard that guards the bottom line of fairness in criminal law.
