- 1. Crime of damage to business reputation and commodity reputation: the maximum penalty is two years in prison
- In accordance with the provisions of Article 221 of the Criminal Law of the People’s Republic of China, if fabricated and disseminated false facts, damages the commercial reputation of others, the reputation of the goods, and causes significant losses to others or other serious circumstances, they shall be sentenced to fixed-term imprisonment of two years or less. Criminal detention, concurrent or single penalty.
- According to the provisions of the Supreme People’s Procuratorate and the Ministry of Public Security on the Prosecution of Criminal Cases under the Jurisdiction of Public Security Organs (II), the reputation of commercial commodities is damaged:
- (1) causing direct economic losses to others of more than 500,000 yuan;
- (2) Although it does not meet the above-mentioned amount standards, it has one of the following conditions: 1. Using the Internet or other media to publicly damage the commercial reputation and reputation of others; 2. causing the company, enterprises and other units to suspend business and suspend production for more than six months. Or bankrupt;
- (3) Other circumstances that cause significant losses to others or have other serious circumstances.
- 2. The following five manifestations of behavior may violate the crime of damaging the reputation of goods.
- 1. By publishing contrastive advertisements, the Internet, or other media to disseminate false facts that are fabricated, maliciously derogatory, defaming others’ business and commodity reputation.
- 2. Organize personnel to make false complaints to market regulators, consumer associations or news organizations in the name of customers or consumers, to discredit and damage the reputation of others.
- 3. Deliberately spread fabricated false facts to competitors’ customers or consumers in public occasions such as business negotiations, depreciating and defaming others’ reputation. Dissemination of false facts can be done in writing or in a verbal manner.
- 4. Malicious litigation is the fabrication of infringing facts and the dissemination of such false facts to the public through litigation, which derogates and damages the goodwill of others.
- 5. Derogation and defamation of similar products produced and sold by others in the packaging or instructions of the goods, and damage the reputation of others.
- 3. The law of reputational infringement is prohibited
- Article 110 of the General Principles of the Civil Law of the People’s Republic of China, natural persons enjoy the rights to life, body, health, name, portrait, reputation, honor, privacy, and marriage autonomy. Legal persons and unincorporated organizations enjoy the rights of name, reputation and honor.
- The composition of reputational infringement shall be determined from the fact that the victim has been infringed by the reputation, the act of the perpetrator, the causal relationship between the illegal act and the consequences of the damage, and the subjective fault of the perpetrator.
- 4. Three ways of reputational infringement
- Insult: The act of blatantly damaging the personality of others and destroying the reputation of others by language (including written and verbal) or action. Such as the use of large-character posters, small-character posters, cartoons or extremely inferior, dirty language and other forms of abusive, mocking others, so that others’ hearts are stigmatized.
- 诽谤: Fabricating and spreading certain false facts that undermine the reputation of others. If there is no basis or catching up with the wind, others will not be good at it, and will be arrogant and damage the reputation of others, causing great suffering to others.
- The infringement of corporate reputation is mainly manifested in the dissemination of false news that damages the reputation of legal persons, such as the fiction of certain facts, the inferiority of the quality of a factory’s products, and the use of unfair competition to smash each other.
- It is not a crime to violate the law. There are connections and differences between the two. The essential feature of crime is social harm. The crime of damage to commercial reputation and commodity reputation is the market transaction order and the right of goodwill. The difference is that reputational infringement is only a general illegal act and is a civil dispute.
- Returning to the “Hongmao medicinal liquor” case, the article of the doctor involved in the case, Dr. Tan, is a civil tort or a criminal offence?
- We also need to combine evidence to prove that illegality is not necessarily a crime. Tort is not necessarily a criminal act. The principle of humility of criminal law still needs to be followed. Only when the infringement achieves sufficient social harm and has serious consequences for social order, Will constitute a criminal offence.
- 5. How to prevent criminal legal risks from the media age?
- I. Fabrication and dissemination
- Simple “fabrication” and pure “distribution” cannot constitute a crime of damaging commercial reputation and commodity reputation. The actor simply fabricated false facts, no matter what form it was fabricated, it would not cause any damage to the goodwill of the goodwill subject. However, after the media reported and fertilized, the harm of the fabricator’s behavior was released. . Therefore, fabrication and dissemination must coexist as a community of behavior.
- As a person who disseminates information, even if there is no “fabrication” behavior, if the information is false, misleading or harmful, knowing that if the above information is transmitted, it will cause serious social adverse consequences and spread, then the dissemination of information becomes A link of “fabrication and dissemination” and the accomplice of the constitutive crime of the fabricator should also be subject to criminal punishment.
- Second, fabricate and disseminate “false facts”
- False facts often become the focus of debate between the prosecution and the defense in the court. The determination of “false facts” can be grasped from the following two aspects: First, the facts that are not true and do not conform to the objective situation. Because “fabrication” can only be a false fact; second, it should be the “fact” about the subject of goodwill. That is, the false facts should be the fact that the depreciation of the subject of the right of goodwill is derogated.
- Therefore, in the rapid development of Internet information and self-media, as the medium of information dissemination, if it spreads the facts that are inconsistent with the objective situation, it is the fact that it derogates and destroys the goodwill of the subject of goodwill, and causes serious consequences. If you are, you may be held criminally liable.
- Then, in order to prevent criminal legal risks, if you cannot judge the authenticity of the source of information and the facts, and you cannot judge the consequences of the information release, please do not distribute it at will.
- 6. How should companies protect their legitimate rights and interests?
- When a company encounters a negative social assessment of the economic ability, credit status, commodity performance, and product quality of the public or a particular competitor, it affects the credit and reputation of the enterprise itself or the commodity in economic life, causing significant If losses or bad influences, how should companies use criminal legal means to protect their legitimate rights and interests?
- Consult a professional criminal lawyer to communicate the facts with the lawyer in depth, and the lawyers will give professional legal advice and litigation plans.
- Under the guidance of professional lawyers, collect and fix relevant evidence materials as soon as possible. Once a company finds a negative social assessment of its own production or commodities, it should immediately seek out and contact the publisher of the negative evaluation, and check its own production status or commodity status in light of the specific circumstances involved in the evaluation. If the actual situation does not match the negative evaluation, relevant evidence materials should be collected and fixed as soon as possible, such as going to the notary office for network notarization, and alerting the public security organs.
- Entrusted lawyers to write a written report reflecting the facts of the case, report the case to the public security organ, and strive to open the case. Under the guidance of lawyers, enterprises collect and fix evidence, and lawyers write criminal reports and report to the public security organs for effective reporting.
- Entrusted lawyers to follow up in a timely manner and report the report in due course. After the enterprise reports the case, it shall promptly consult the public security organ through the lawyer or the company designated employee, and follow up the relevant progress. If the relevant case-handling personnel are found to be procrastinating or inadvertent, they may complain to the higher authorities, if there is any illegal situation. You can complain to the procuratorial organ at the same level or request to file a case supervision.
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