On the evening of September 6, the relevant procuratorate announced that after legal examination, the criminal suspect Wang Mouwen's compulsory obscene behavior did not constitute a crime, and the arrest was not approved. At the same time, the relevant public security bureau issued the "Information Circular": the investigation of Wang Mouwen was terminated according to law, and according to the provisions of Article 44 of the Law on Public Security Administration Punishment, Wang Mouwen was sentenced to 15 days of public security detention. Ali Company responded: The facts have been clarified and the judiciary has reached a conclusion.
It seems that the dust has settled, but the discussion enthusiasm of netizens remains undiminished. Indeed, this matter is too topical. A netizen said: A female employee reported the rape of a male leader, and the result did not constitute a criminal offence; The female employee did not report Zhang, and Zhang was arrested as a result.
in this article, I won't discuss the relevant legal knowledge points, such as the notes on the articles related to the crime of compulsory obscenity, supporting regulations, filing standards, guiding cases, etc. Please refer to pages 92 -97 of the Criminal Law (6th Edition).
I'd like to discuss what the netizens are talking about. Roughly speaking, the hot topics of netizens are relatively concentrated, but their views are relatively scattered. I noticed that the relevant discussion camps have their own reasons, and it is difficult to convince each other. This may be due to the lack of good persuasion tools.
In this regard, I found that in some excellent judgment documents of civil and commercial cases, we can not only see valuable judgment rules, but also see many excellent legal reasoning contents. These contents are clear in logic, contain objective, comprehensive, meticulous and rigorous thinking of legal persons, and are excellent persuasion tools.
In this article, I summarized several hot controversial issues, trying to give you some ideas to convince each other and convince yourself.
Some netizens said that the case was reversed, and the female employee may constitute false accusation.
In this hot discussion, I noticed that in the case of Zhong Yongyu, Wang Guang and Lin Rong Da, the sixth issue of the Supreme People's Court Bulletin in 216, the Supreme People's Court had such a statement: "Thus, the provisions in Articles 25 to 28 of the Provisions of the Supreme People's Court on Several Issues Concerning People's Courts Handling Cases of Execution Objection and Reconsideration should be understood in the following sense, that is, if the conditions listed in these provisions are met, the execution objection can be established; If the conditions listed in these regulations are not met, the objection's request in the execution of the objection lawsuit may not be invalid. Whether it is established or not, we should make a comprehensive judgment based on the specific circumstances of the case and the rights advocated by the dissenter, the effectiveness of the application for enforcement of the creditor's rights and the rights of the executed person to the execution target, so as to determine whether the rights of the dissenter can be excluded from execution. "
if this legal logic is applied to this incident, it can be as follows: if it conforms to the relevant provisions of the Criminal Law, the crime is established, and if it does not conform to the constitutive requirements of the relevant crimes in the Criminal Law, the violation at the level of the Public Security Administration Punishment Law may not be established. As it turns out, the male leader got the top punishment for violating the law (non-crime).
Some netizens believe that female employees may be at fault in the illegal facts of male leaders.
I don't make any analysis on who is right or wrong in this incident. I noticed that the headlines of some media reports implied some tendentious positions-"The hero of the' Ali incident' set foot on his way home, and the defense lawyer: the innocent result is closely related to his wife's efforts".
This article is neutral, and only tries to provide some ideas through cases.
Brief introduction of the case
On November 22nd, 214, the column of "Calendar of New Shares" of Sina.com's financial channel published an article entitled "The subscription for online issuance of 7 new shares on 24th needs 1,229,8 yuan". The "Kaifa Electric (347) subscription code 2724" recorded in the text of this article is an error message, and the correct subscription code is 347.
from 1: 5 to 13: 23 on November 24, 214, the plaintiff logged into the securities online trading system and sold several stocks one after another to raise more than 1.28 million yuan for subscription of new shares. The plaintiff entered 2724 according to the subscription code of "Kaifa Electric" recorded in the webpage involved, and the stock name "Ocean King" jumped out of the system, but the plaintiff failed to pay attention to it. After confirmation, he bought 18,5 shares of Ocean King by mistake. Since then, the stock price trend of Ocean King has been falling, and the plaintiff was forced to sell at a low price, which caused heavy losses, so he chose to file a lawsuit and demanded that Sina.com compensate for the loss of more than 28, yuan and interest.
Judgment result
This case was first tried by Xihu District People's Court in Hangzhou, with case number: (216) Zhejiang 16 Minchu No.3437, second tried by Hangzhou Intermediate People's Court in Zhejiang Province, with case number: (217) Zhejiang 1 Minzhong No.2481, and finally retried by Zhejiang Higher People's Court, with case number: (218) Zhejiang Minshen No.1584.
There is a case analysis of this case in the 147th Series of Selected Cases of the People's Court:
"In this case, the time nodes of Xu Jianfeng's actions such as buying stocks, sending complaint emails, and taking screenshots to save the web pages involved in the case are connected with each other, and the capital trend of purchasing the corresponding stocks corresponds to the order and amount of purchasing stocks on the same day contained in this article. Therefore, it can be judged that Xu Jianfeng's purchase of stocks with code" 2724 "has indeed been financed by Sina.com. However, this effect only lasted until Xu Jianfeng entered the code and clicked OK when applying for shares. Then it was blocked because Xu Jianfeng failed to fulfill his duty of care in the process of stock subscription and confirmed the purchase of "Ocean King" shares. The error code in the article on Sina's website does not constitute a sufficient condition for Xu Jianfeng to purchase and trade a specific stock. In addition, stock investment is a self-financing investment behavior. After Xu Jianfeng bought the "Ocean King" stock, he knew that he bought it wrong and knew that it was going down, but he didn't sell it as soon as possible. To a certain extent, it reflected his initiative to hold the "Ocean King" stock after buying it, and the subsequent property losses were of course not causal with Sina's publication of the wrong stock code. "
Applying this legal logic to this incident can be as follows:
"Even though the illegal behavior of male leaders has been influenced by female employees, because male leaders always have the right to choose independently, this influence only lasts until the male leaders choose to start, and then it is blocked by their own factors. The fault (if any) of female employees does not constitute a sufficient condition for male leaders to commit illegal acts. In addition, the status of men and women in such crimes is naturally different. Men are active and dominant. In addition, the male leader is an adult with a certain knowledge reserve and social status. He knows that he has a family and knows that this behavior is suspected of breaking the law. He still chooses to "enter the female employee's room" many times, which strengthens his initiative in breaking the law to a certain extent. Of course, there is no causal relationship between the subsequent illegal facts and female employees. "
Some netizens think that the male leader tried to take advantage and made a mess of everything. First, his wife was consistent with the outside world, and then she would attack at home, probably to get a divorce.
there is a saying: "I can't stand it if I can see it, but I can't do it if I want it." This is probably the complicated human nature. Lawyers have seen some cases, and the parties inside are all regretful. "If only I could resist the temptation at that time." Then, let's try to discuss how to make people really bear it. In this regard, Confucianism, Buddhism, psychology and so on in history have been fully discussed, but probably no legal person has used legal professional knowledge to talk about it.
today, I will give it a try.
Lawyers in civil and commercial law often refer to the legal concept of "duty of care". For example, in the previous case, "Xu Jianfeng failed to fulfill his duty of care in the process of stock subscription ..." So, one of the ways that legal persons can think of is probably about duty of care.
first of all, I found that the duty of care varies from person to person. For example, Article 4 of the Supreme People's Court's Provisions on Evidence in Intellectual Property Civil Litigation stipulates:
At the macro level, the duty of care of big leaders and ordinary people is not the same.
Secondly, I found that the duty of care varies from case to case. For example, at the micro level, the duty of care of big leaders can be lowered in some small matters, and the duty of care of small people should be raised in some big matters.
You may say why it's so complicated. Just use "one effort to reduce ten meetings" and always keep a high degree of attention. This is certainly no problem, but it may not be realistic, because attention is probably a limited resource. Therefore, we don't need to pay great attention at all times, we just need to maintain a "reasonable" duty of care, which requires complicated deployment. Perhaps we should talk about another legal concept-"obligation of appropriateness" here.
the general meaning of the propriety obligation stipulated in the minutes of nine people is that the propriety obligation refers to the obligations that the seller's institution must perform in the process of introducing, selling and providing services to financial consumers, such as knowing customers, knowing products and selling (or providing) appropriate products (or services) to suitable financial consumers. The purpose of undertaking the obligation of appropriateness is to ensure that financial consumers can make their own decisions on the basis of fully understanding the nature and risks of related financial products and investment activities, and bear the resulting benefits and risks. In the field of promoting and selling high-risk financial products and providing high-risk financial services, the performance of appropriateness obligation is the main content of "seller's due diligence" and the premise and foundation of "buyer's conceit".
Applying this legal logic to the Ali incident can be as follows:
What male leaders must perform at that time is to know themselves, understand the environment, and give appropriate attention and willpower to the right things and people. The purpose is to ensure that you can fully understand the nature and risks of your behavior, and then make independent decisions, and bear the resulting benefits and risks. In the case of suspected crimes, the performance of appropriate sexual obligations is the main content of maintaining "being responsible for yourself" at that time, and it is also the premise and foundation of "bearing the consequences".
Finally, because lawyers are used to extremely complicated and delicate intellectual work, we still have room to discuss a deeper problem-how to distinguish the above-mentioned major events from minor ones.
I have seen a joke on the Internet, in which the bride said to the groom, "In the future, you are in charge of major issues, and I am in charge of minor issues", and the bride also said, "Besides, major issues only include the decision to launch the war in Afghanistan and the presidential election in the United States."
by the same token, for some unwary people, all "big things" can be regarded as "small things".
The job of a legal person is to make things clear and definite under difficult circumstances. Next, I will talk about how to make relevant definitions and norms with meticulous and rigorous legal analysis.
The following is a legal analysis on the duty of care of trademark sellers. The fineness and granularity may let us understand it together.
"In fact, according to the law, the burden of proof borne by the seller is" to prove that the commodity is legally obtained by itself and to explain the supplier ".As for whether it is subjective or not, it can be comprehensively judged according to the information of the commodity itself and the evidence submitted by both the original and the defendant. The specific factors to be considered are as follows:
(1) Information of the commodity itself. First of all, we should consider whether the goods have the factory name, address and production license code, which are the most basic information of commodity circulation. If a product does not even have these basic information, in principle, it is not considered that the seller is subjective in good faith. Secondly, if a commodity (the packaging box is not sealed) has the above situation, it should generally be considered that the seller has neglected the inspection and failed to fulfill the basic inspection obligations.
(2) The evidence submitted by the plaintiff generally includes: first, the popularity of the trademark. The higher the popularity of a trademark, the greater the possibility that the seller knows the trademark, and the higher the duty of care it bears. Second, the defendant's reasonable purchase and sales price. Third, whether the plaintiff has sent a lawyer's letter to the defendant. Generally speaking, after receiving a letter from a lawyer, the defendant's subjective state can at least be presumed as "may know" or "should know". At this time, he should suspend the behavior in time and deal with it accordingly according to the situation. Fourth, whether the defendant was once the plaintiff's distributor. If so, then the defendant must have a certain understanding of the plaintiff's goods and have a certain means of distinction. If he claims "not knowing" again, he must have a higher standard of proof. Fifth, whether the defendant has been prosecuted or given administrative punishment for the same kind of infringement. Similarly, if the defendant has been sued, his knowledge of the goods should be greater than that of ordinary sellers, and he should be more cautious in the process of purchasing goods.
(3) The defendant's evidence generally includes: first, the evidence about the source of goods. Whether the accused infringing goods come from regular enterprises or individuals without business qualifications come to sell them. Generally speaking, individuals without business qualifications can't guarantee the quality of the goods and can't trace the source of the goods. The higher the possibility that the goods are involved in infringement, the higher the defendant's duty of care. Second, the defendant's business scope and scale. Here, it is necessary to distinguish whether it is a grocery supermarket or a franchise store, whether it is a small supermarket or a large-scale chain supermarket, whether it has just been in business or has a long business experience, and the latter should bear a higher burden of proof. Third, the certification materials of the goods themselves, such as whether there is a trademark registration certificate or a product inspection report. "
recently, I wrote an article entitled "the husband is innocent when he is at fault"? Lawyers look at the Ali incident: I have learned the legal thinking of simplifying the complex! The discussion is to simplify the complex. In fact, in the face of complex problems, we can also deal with them in simple ways.
For example, faced with the temptation of "cheap doesn't occupy white doesn't occupy", some simple people always believe the old saying "cheap doesn't occupy, busy doesn't watch"; People with faith always believe that "to enjoy happiness is to eliminate happiness, and to suffer hardship is to suffer". Legal persons choose to believe in the principle of reciprocity of rights and obligations, and all "good things" always pay a price.
If we really believe this, then the question is simple, "Do things by the book.