People's Procuratorate of Fengxian District, Shanghai Municipality v. Chen En, Et Al (Case of Injury of Commodity Prestige)

上海市奉贤区人民检察院诉陈恩等人损害商品声誉案

【法宝引证码】

Type of Dispute: Criminal --＞Undermining Order of Socialist Market Economy
Legal document： Ruling
Judgment date： 06-26-2003
Procedural status： Trial at Second Instance

People's Procuratorate of Fengxian District, Shanghai Municipality v. Chen En, Et Al (Case of Injury of Commodity Prestige) BASIC FACTS Procuratorial Organ: People's Procuratorate of Fengxian District, Shanghai Municipality. Defendant: Chen En, investor of Qianjiang Hotel in Lianyungang City, Jiangsu Province, dwelling at Wuyuan Town, Haiyan County, Zhejiang Province. He was arrested on June 21, 2002. Defendant: Jin Yuegen, employee of Qianjiang Hotel in Lianyungang City, Jiangsu Province, dwelling at Haitang Township, Haiyan County, Zhejiang Province. He was arrested on June 21, 2002. Defendant: Jin Jiaxiang, employee of Qianjiang Hotel in Lianyungang City, Jiangsu Province, dwelling at Haitang Township, Haiyan County, Zhejiang Province. He was arrested on June 21, 2002. Defendant: Qian Guangru, reporter of Nanjing Morning Post of Jiangsu Province, dwelling at Xiaguan District, Nanjing City, Jiangsu Province. He was arrested on June 21, 2002. With regard to the commodity prestige by Chen En, Jin Yuegen, Jin Jiaxiang and Qian Guangru, the People's Procuratorate of Fengxian District, Shanghai Municipality lodged a prosecution to the People's Court of Fengxian District, Shanghai Municipality (shortened as “Fengxian District Court” hereafter) on December 6, 2002. PROCEDURAL POSTURE The bill of indictment describes that:In 2001 April, Guest Room Department of Huanghai Holiday Resort in Lianyungang, Jiangsu (hereinafter referred to as “Guest Room Department”), which was contracted to Chen En for operations, purchased 84 Shining air-conditioners from Lianyungang Guangyuan Electric Appliances Limited Liability Company (hereinafter referred to as “Guangyuan Company”), but only paid partial the price. Since November of the same year, Chen En, Jin Yuegen and Jin Jiaxiang claimed against Shanghai Shining Air-conditioner Manufacture Co. Ltd. (hereinafter referred to as “Shining Company”) for a huge amount of compensation on the ground that the batch of the Shining air-conditioners had quality problems. On December 28, 2001 and January 14, 2002, Qian Guangru successively published articles on newspapers by saying that batches of the Shining air-conditioners had quality problems, and accepted 4,000 Yuan from Chen En, et al. On March 14 and March 28, 2002, the four defendants made a division among their work after negotiation. As a result, Qian Guangru was responsible for determining the place and informing the media, and Chen En, Jin Yuegen and Jin Jiaxiang were responsible for smashing an the Shining air-conditioner in public in Nanjing and Shanghai, respectively, and spreading the comments to the surrounding masses and reporters on the inferior quality of Shining air-conditioners, and groaning about the batch quality problems of Shining air-conditioners, and so on. On May 13, Chen En, Jin Yuegen and Jin Jiaxiang continued smashing the Shining air-conditioners publicly in Nanjing, and defamed the prestige of the Shining air-conditioners. Then several media reported the incident of “Smashing Air-conditioners”. After the prestige of the Shining air-conditioners was injured, Shining Company suffered from more than RMB 590,000 Yuan of direct losses due to return of goods, and after the case occurred, the quality of the air-conditioners was found from inspection to meet the national standards. The prosecutorial organ held that, in accordance with Article 221 of the “Criminal Law of the People's Republic of China”, the four defendants' acts had constituted the crime of injuring commodity prestige, and should be punished accordingly. Chen En, Jin Yuegen and Jin Jiaxiang all argued that: the Shining air-conditioners purchased by Guest Room Department did have quality problems such as noises, etc. They had no way to give vent to their complaints but to smash the air-conditioners in public and to inform the masses and the media of the quality problems. It was a normal way to maintain their interests, and their purpose was to urge Shining Company to resolve their problems instead of injuring the commodity prestige intentionally. The defenders of Chen En and of Jin Jiaxiang held that, the original purpose of the legislation on the crime of injuring commodity prestige lies in punishing unfair competition. However, Chen En, et al, were consumers and not competitors, hence the accusation that the defendants' acts constituted the crime of injuring commodity prestige was inconsistent with the original purpose of legislation. The Shining air-conditioners did have quality problems, and Chen En, et al, did not fabricate any facts for false publicity, nor did they subjectively have the intention of injuring the commodity prestige, hence none of their acts constituted a crime. The defender also proposed his objection to the conclusion on more than 590,000 Yuan of losses. Qian Guangru argued that: the two news reports he wrote were objective news reports based on the environmental monitoring report and the narration of Chen En, et al. He himself did not take part in the plot to smash air-conditioners, so he did not commit the acts accused in the bill of indictment such as determining the place and informing the media. Qian Guangru's defender held that, Qian Guangru subjectively had no intention of injuring Shining's commodity prestige, and objectively had no act of fabricating or spreading untrue facts, thus he did not commit the crime. It was verified by Fengxian District Court after trial that both the prosecutor and the defendants had no dispute over the following facts: In April 2001, Guest Room Department which was rented and run by Chen En purchased 84 Shining air-conditioners from Guangyuan Company at the total price of over 270,000 Yuan. By August, Guest Room Department had paid more than 100,000 Yuan for the air-conditioners. During that period, Guangyuan Company examined and repaired exceptional air-conditioners with breakdowns. In November, Chen En complained to Shining Company on the ground that the air-conditioners had quality problems, and Shining Company then sent persons to Lianyungang for test and negotiation. During the negotiation, Chen En held that the quality of the foregoing air-conditioners was inferior, and claimed against Shining Company for compensation; while Shining Company held that the quality of the air-conditioners was generally OK. Both parties failed to reach an agreement. After that, Chen En sent letters to Shining Company for many times, demanding a huge amount of compensation, and declared that if Shining Company did not settle the matter, he would go to Nanjing, Shanghai and other places to smash the air-conditioners and meanwhile expose the incident through news. On December 4, 2001, Chen En entrusted Lianyungang Municipal Environmental Monitoring Center (hereinafter referred to as the “Environmental Monitoring Center”) to test the noises of the Guest Room Department's air-conditioners. The noises at three locations for monitoring all exceeded the standard. Lianyungang Municipal Environmental Supervision Division sent an on-site supervision record to Chen En, proposing the supervision opinions on making a rectification within a time limit and levying 28,000 Yuan at double amount of the pollution discharging fees for the excessive noises (which was not actually paid). After that, Chen En entrusted Jiangsu Provincial Product Supervision and Inspection Center (hereinafter referred to as “Jiangsu PSIC”) via Lianyungang Quality and Technical Supervision Bureau (hereinafter referred to as Lianyungang QTSB), and successively brought two Shining air-conditioners to Jiangsu PSIC for inspection. Jiangsu PSIC concluded in the inspection report that the noises of one of the air-conditioners did not meet the standard. On March 14, 2002, Chen En, Jin Yuegen and Jin Jiaxiang brought the above said on-site supervision records and the inspection report, showed the banners at the crossing of Zhongshan East Road and Taiping North Road in Nanjing, which said “We have no way to complain about the inferior quality of the Shining air-conditioners but to smash them”, and smashed a Shining wall-split air-conditioner in public. On March 28, the three defendants showed another banner near Zhenping Road Station of Shanghai Pearl Line, saying that “The quality of the Shining air-conditioner is inferior. Any passerby who smashes the air-conditioner will be awarded ten Yuan.” In this way, they offered rewards to the passerby who smashed the Shining wall-split air-conditioner. On May 1, the three defendants showed the banners carrying words “The quality of Shanghai Shining air-conditioners is inferior. Since 8 months ago, we have had no way to complain. Now we need no compensation but justice.” Then they smashed another Shining wall-split air-conditioner in public at Nanjing Lefulai Plaza. After the above-mentioned incident occurred, the media in Nanjing and Shanghai separately reported the news, and the media in some other places in China also reprinted or reported the news. On December 28, 2001 and January 14, 2002, Qian Guangru successively wrote two news reports separately entitled “Being Fined for Excessive Noises, and Customer Claimed for 2 Million – 84 Shining Air-conditioners Got into Trouble” and “Continued Story about the Trouble of Shining Air-conditioners --- Customer Closed Business to Claim for 3 Million Yuan” and published them on Nanjing Morning Post. The main contents of the news reports were that Guest Room Department was fined 28,000 Yuan by the environmental supervision department due to excessive noises of its air-conditioners, that Guest Room Department closed its business since the air-conditioners did not produce warmth, and that Chen En claimed against the manufacturer for more than 2 million Yuan, and so on. The four defendants and their defenders did not deny the above-mentioned facts, but proposed different opinions on the purpose, motivation and nature, etc. of the defendants' acts. Fengxian District Court found the facts disputed by the prosecutor and defendant as follows:		上海市奉贤区人民检察院诉陈恩等人损害商品声誉案【裁判摘要】被告人为诋毁他人商品的声誉，故意歪曲、夸大事实，在公共场所砸毁他人商品，对他人的生产经营活动造成重大损失的，根据刑法第二百二十一条的规定，其行为构成损害商品声誉罪。公诉机关：上海市奉贤区人民检察院。被告人：陈恩，江苏省连云港市钱江宾馆投资人。2002年6月21日被逮捕。被告人：金月根，江苏省连云港市钱江宾馆工作人员。2002年6月21日被逮捕。被告人：金家祥，江苏省连云港市钱江宾馆工作人员。2002年6月21日被逮捕。被告人：钱广如，江苏省《南京晨报》记者。2002年6月21日被逮捕。被告人陈恩、金月根、金家祥、钱广如损害商品声誉案由上海市奉贤区人民检察院于2002年12月6日向上海市奉贤区人民法院提起公诉。起诉书指控：2001年4月，被告人陈恩租赁经营的江苏省连云港黄海度假村客房部(以下简称“度假村客房部”)向连云港广源电器有限公司(以下简称“广源公司”)购买双菱牌空调84台，仅支付了部分货款。同年11月起，被告人陈恩、金月根、金家祥以双菱牌空调存在批量质量问题为由，向上海双菱空调器制造有限公司(以下简称“双菱公司”)提出巨额索赔。2001年12月28日和2002年1月14日，被告人钱广如先后在报纸上刊登双菱牌空调存在批量质量问题的文章，并收受陈恩等人4000元。2002年3月14日、3月28日，四名被告人经商量分工，由钱广如确定地点、通知媒体，陈恩、金月根、金家祥先后在南京、上海等地，当众砸毁双菱牌空调各一台，并向围观群众和记者散布双菱牌空调质量低劣、存在批量质量问题等言论。同年5月13日，被告人陈恩、金月根、金家祥又在南京继续公开砸毁双菱牌空调，诋毁双菱牌空调声誉。多家媒体报道了“砸空调”事件。双菱牌空调声誉受损后，仅产品退货就造成双菱公司直接损失人民币59万余元。案发后经检验，该批空调质量符合国家标准。公诉机关认为，根据《中华人民共和国刑法》第二百二十一条之规定，四名被告人的行为已构成损害商品声誉罪，应予惩处。被告人陈恩、金月根、金家祥均辩称：度假村客房部购买的双菱牌空调确实存在噪声等质量问题，他们在投诉无门的情况下，当众砸毁空调、向群众和媒体进行宣传，是正常的维权行为，目的是要双菱公司出面解决问题，并不具有损害商品声誉的故意。陈恩、金家祥的辩护人认为，损害商品声誉罪的立法本意在于制裁不正当竞争，陈恩等人作为消费者，并非竞争主体，指控被告人的行为构成损害商品声誉罪与立法本意不符。双菱牌空调确实存在质量问题，陈恩等人没有捏造事实进行虚假的宣传，主观上也没有损害商品声誉的故意，因此均不构成犯罪。辩护人还对59万余元的损失结论认定提出异议。被告人钱广如辩称：他所写的两篇新闻报道是依据环境监测报告和陈恩等人反映所作的客观报道，他没有参与商量砸空调，不存在起诉书指控的确定地点、通知媒体等行为。被告人钱广如的辩护人认为，钱广如主观上没有损害商品声誉的故意，客观上也没有实施捏造、散布虚假事实的行为，不构成犯罪。上海市奉贤区人民法院经审理查明，控辩双方对以下事实无争议： 2001年4月，被告人陈恩租赁经营的度假村客房部向广源公司购买了84台双菱牌空调器，共计价值人民币27万余元。至同年8月，度假村客房部已支付货款10万余元。在此期间，广源公司对个别出现故障的空调器进行了检修。同年11月，陈恩以空调器存在质量问题为由，向双菱公司投诉，双菱公司即派员赴连云港进行检测和协商。协商过程中，陈恩一方认为上述空调器质量低劣，要求双菱公司赔偿；双菱公司则认为空调器总体质量没有问题，双方未达成一致意见。此后，陈恩一方多次发函至双菱公司，提出巨额索赔，并声称若不出面解决，就要到南京、上海等地砸毁空调，进行新闻曝光。 2001年12月4日，陈恩一方委托连云港市环境监测中心站(以下简称“环境监测中心”)对度假村客房部进行空调噪声监测。三个监测点的噪声均超过标准。连云港市环境监理支队为此向陈恩发出一份现场监理记录，提出了限期整改、加倍征收噪声超标准排污费2．8万元的监理意见(未实际缴付)。此后，陈恩一方又通过连云港质量技术监督局(以下简称连云港质监局)委托，先后将两台双菱空调器自行送往江苏省产品质量监督检验中心所(以下简称“江苏质检中心”)检验。江苏质检中心在检验报告中认定，送检的一台空调器噪声不合格。 2002年3月14日，被告人陈恩、金月根、金家祥持上述现场监理记录和检验报告，在南京市中山东路太平北路路口打出“双菱空调，质量低劣，投诉无门，砸毁有理”的宣传语，当众砸毁壁挂式双菱牌空调一台。同年3月28日，上述三名被告人又在上海市轻轨明珠线镇坪路站附近打出“双菱空调，质量低劣，路人愿砸，奖励十元”的宣传语，悬赏路人砸毁壁挂式双菱牌空调一台。同年5月1月，三名被告人打出“上海双菱空调，质量低劣，八个月来，投诉无门，不要赔偿，只要公理”的宣传语，在南京市乐富来广场再次当众砸毁壁挂式双菱牌空调一台。上述事件发生后，南京、上海等地媒体分别作了报道，国内其他一些地方的媒体也作了转载或报道。 2001年12月28日和2002年1月14日，被告人钱广如先后采写了题为《噪音超标被处罚，客户索赔200万—84台双菱空调惹麻烦》和《双菱空调惹麻烦有续闻—业主停业索赔300万元》的两篇新闻报道。在《南京晨报》上登载。报道的内容主要是度假村客房部因空调噪声过大而被环境监理部门处罚2．8万元、客房部因空调不制热而关门停业、陈恩向生产厂家提出200余万元索赔等。四名被告人及辩护人虽不否认上述事实的存在，但对被告人行为的目的、动机、性质等均提出了不同意见。上海市奉贤区人民法院对控辩双方有争议的事实认定如下：
I. Whether the Shining air-conditioners had quality problems. The procuratorial organ held that, the Shining air-conditioners manufactured by Shining Company were commodities meeting the national quality standards and enjoying certain prestige. The quality of the Shining air-conditioners used by Guest Room Department was also qualified. The main bases were as follows:		一、关于双菱牌空调是否存在质量问题。公诉机关认为，双菱公司生产的双菱牌空调器是符合国家质量标准，并享有一定声誉的商品。度假村客房部所使用的双菱牌空调质量也是合格的。主要依据是：
1. The inspection report of Shanghai Municipal Product Quality Supervision and Inspection Office, which proves that the Office was entrusted by Shanghai Municipal Quality and Technical Supervision Bureau and Fengxian Branch of Shanghai Municipal Public Security Bureau to sample test Guest Room Department's Shining air-conditioners, and the conclusion was that the said air-conditioners were qualified; the statement of Appraiser Guo Weijun, which proves that the means and process of sampling conformed to the provisions of the state; the inspection report of China National Center for Quality Supervision and Test of Electrical Appliances, which proves that Fengxian Branch of Shanghai Municipal Public Security Bureau delivered the two air-conditioners to the Center for inspection, and the inspection conclusion was that the cooling capacity, the warming capacity and the noises were all found to meet the national standards.		1．上海市产品质量监督检验所的检验报告，证明该所受上海市质量技术监督局、上海市公安局奉贤分局委托，对度假村客房部使用的双菱牌空调进行抽样检验，结论为合格；鉴定人郭卫军的陈述，证明该所采用的抽样方式及过程均符合国家规定；国家日用电器质量监督检验中心检验报告，证明上海市公安局奉贤分局将上述两台空调器送至该中心检验，检验结论为制冷量、制热量及噪声检验结果均符合国家标准。
2. The “Certificate of Conformity of the Electrical Equipment” issued by China Commission for Conformity Certification of Electrical Equipment (hereinafter referred to as CCEE), the “Certificate of Product Free of Quality Inspection” issued by the State Administration of Quality Supervision, Inspection and Quarantine, and a letter of the Secretarial Office of the Household Appliances Certification Branch of CCEE to Shining Company, which prove that the Shining air-conditioners were manufactured upon ratification of the state, and that the Shining wall-split air-conditioners were products free of quality inspection.		2．中国电工产品认证委员会颁发的《电工产品认证合格证书》、国家质量监督检验局颁发的《产品质量免检证书》、中国电工产品认证委员会家用电器认证分会秘书处致双菱公司的函件，分别证明双菱牌空调经国家核准生产，双菱壁挂式空调是质量免检产品。
3. Testimonies of Dong Hailong and Guo Jiacai (former employees of Guangyuan Company), which prove that the overall quality of the Shining air-conditioners purchased and used by Guest Room Department were good, and the problems with some rare air-conditioners were mainly due to wrongful connection of electric power and improper installation, etc. Testimonies of Xue Qihua and Yuan Hailin (employees of Shining Company) and relevant documentary evidence such as legal letters, postal vouchers, etc., which prove that, after receiving Guest Room Department's complaint, Shining Company immediately sent its persons to test the air-conditioners but did not find any major quality problem; the noises of 6 air-conditioners were caused by the circumfluence of air due to improper location of installation, and the noises of 2 air-conditioners were caused by themselves. As the amount of compensation claimed by Chen En, et al, was too large, both parties failed to reach an agreement on how to settle the matter.		3．原广源公司工作人员董海龙、郭家才的证言，证明度假村客房部购买使用的双菱牌空调总体质量是好的，个别空调出现问题，主要是错接电源、安装不当等原因。双菱公司工作人员薛启华、袁海林的证言及有关的律师函、邮寄凭证等书证，证明双菱公司接到度假村客房部的投诉之后，即派员前去进行检测，未发现空调有重大质量问题，其中6台空调有噪声是由于安装位置不当造成空气回流所致，两台属自身原因。由于陈恩等人提出的索赔数额过大，双方未就如何解决问题达成一致意见。
4. Testimonies of Liu Yigao and Wang Tongwang, et al (employees of the Environmental Monitoring Center), which prove that the on-site supervision records and the monitoring report issued by the Environmental Monitoring Center only showed the facts about the monitoring of noises, but could not be used as the basis to determine the quality problems with the air-conditioners. A statement of Lianyungang Municipal Environmental Supervision Division, which proves that Guest Room Department actually did not pay the fee for excessive pollutant discharge, and meanwhile proves that the fee for excessive pollutant discharge was not a fine.		4．环境监测中心工作人员刘益高、王统旺等人的证言，证明环境监测中心所出具的现场监理记录及监测报告只表明噪声监测情况，不能作为判定空调器质量问题的依据。连云港市环境监理支队的情况说明，证明度假村客房部实际未缴超标排污费，同时证明该超标排污费不是罚款。
5. Testimony of Yu Jianbo (employee of Jiangsu PSIC), which proves that Chen En, et al, brought Lianyungang QTSB's letter of entrustment on inspection to successively deliver a Shining air-conditioner to Jiangsu PSIC for inspection for twice; the air-conditioner of the first test was found qualified in conclusion, and no inspection report was issued; while the noise of that of the second test was found unqualified in conclusion, Jiangsu PSIC issued an inspection report, and Jin Jiaxiang offered 2000 Yuan to Yu Jianbo; the above-mentioned air-conditioners were delivered by Chen En, et al, themselves for inspection and were not packed or sealed up the air-conditioners, which did not conform to the procedures for appraisal. A written notice of Jiangsu PSIC, which proves that PSIC separately notified Lianyungang QTSB and Huanghai Holiday Resort on March 11, 2001, saying that the foregoing inspection report “shall not be used for quality appraisal or quality arbitration.” All the defendants and their defenders held that, the Shining air-conditioners did have quality problems. The main bases were as follows:		5．江苏质检中心工作人员于剑波的证言，证明陈恩等人曾持连云港质监局的检验委托书，先后两次各送一台双菱牌空调到江苏质检中心检验，其中第一次检测结论为合格，未出具检验报告；第二次检测结论为噪声不合格，江苏质检中心出具了检验报告，被告人金家祥还送了2000元钱给于剑波；上述空调是陈恩等人自行送检的，送检时空调未包装、未封存，不符合鉴定程序。江苏质检中心的书面通知，证明该中心已于2001年3月11日分别通知连云港质监局和黄海度假村，声明上述检验报告“不用于质量鉴定和质量仲裁”。各被告人及辩护人认为，双菱牌空调器质量确有问题。主要依据是：
1. The on-site supervision records of the Environmental Monitoring Center, which prove that Guest Room Department was really punished by Lianyungang's environmental supervision department due to excessive noises of air-conditioners. Lianyungang QTSB's list of sample supervision and inspection, and Jiangsu PSIC's test report, which also prove that the noises of the Shining air-conditioners were found not up to standard.		1．环境监测中心的现场监理记录，证明度假村客房部确因空调噪声超标而被连云港环境监理部门查处。连云港质监局的监督检查抽样单、江苏质检中心的检测报告也能证明双菱牌空调噪声不合格。
2. A letter of application submitted by Guest Room Department to Lianyungang QTSB, which describes: “Both parties (the other party refers to Guangyuan Company) decides to entrust the Provincial Product Quality Supervision and Inspection Center to make the appraisal”; a letter of Guest Room Department to Shining Company, which describes: “We have discussed with Guangyuan Electric Appliances Company and decides to, as of today, expose the quality of your Shining air-conditioners”. The foregoing two materials were both acknowledged by Guangyuan Company. Dong Hailong indicated on the arrearage proof issued by Jin Yuegen to Guangyuan Company: “It has been invalidated, and the invoices have been taken back”, which proves that Guangyuan Company took back the sales invoices due to the quality problems with the air-conditioners. The news report published on Lianyungang Daily entitled “Who is to blame for the annoyance from Huanghai Holiday Resort's air-conditioners --- excessive noises of ‘Shining' are the chief cause”, which proves that, when Dong Hailong was interviewed by the reporter, he acknowledged that the batch of Shining air-conditioners had quality problems. All the above-mentioned materials show that Guangyuan Company, distributor of the Shining air-conditioners, had to some extent recognized the quality problems with the air-conditioners.		2．度假村客房部向连云港质监局递交的申请书，载明“经双方(另一方指广源公司)决定委托省产品质量监督检验中心所鉴定”；度假村客房部致双菱公司的函件，载明“我方与广源电器公司商议决定，自即日起对你方双菱牌空调质量进行质量曝光”，上述两份材料均经广源公司认可。董海龙在金月根出具给广源公司的欠款证明上注明“已无效，发票已收回”，证明广源公司因空调质量问题而将销售发票收回。《连云港日报》上发表的《黄海度假村空调扰民谁之过—“双菱”噪声严重超标是“祸首”》的报道，证明董海龙在接受记者采访时，曾承认该批双菱牌空调存在质量问题。上述材料均表明，双菱牌空调的经销商广源公司已对空调质量存在问题有所认同。
3. Testimonies of witnesses Xue Qihua and Yuan Hailin, et al, prove that, when they went to Lianyungang to negotiate with Chen En to resolve the quality problems of the air-conditioners, they tested the air-conditioners of Guest Room Department, and found 8 air-conditioners were indeed too noisy and were problematic in other aspects. ．．．．．．		3．证人薛启华、袁海林等人的证言证实，在他们前往连云港与陈恩一方协商解决空调质量问题时，对度假村客房部的空调进行检测，发现8台空调确实存在噪声过大等问题。．．．．．．
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