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Intensive ¡°Click Farming¡± Conducted to Cash in on Platform¡¯s Settlement Error
[2019-05-06]

[Case Review]

In July 2013, a person surnamed Wang registered an online store on an online platform. Later, the online shop applied to participate in a self-service marketing activity of the platform. The activity agreement stipulates that the costs of all promotions shall be borne by the merchant itself, and shall be deducted directly from the merchant¡¯s account when the account is settled. However, in the actual operations, the fees to be borne by the merchant were not deducted from the merchant¡¯s account when the account was settled due to an error of the settlement system of the platform. 

Although Wang was fully aware of the error, he had been using the online store to maliciously cash in on the faulty settlement of the platform by means of ¡°click farming¡± and had gained a total of over RMB 2.07 million since June 2016.

In March 2017, Wang was arrested by the police. After the crime was revealed, Wang paid the platform RMB 1.14 million as compensation with the help of his family, and obtained the forgiveness of the victim company. The court of first instance sentenced Wang to fixed-term imprisonment of 12 years and deprivation of political rights for two years for the crime of theft. Wang was also fined RMB 200,000 and ordered to restitute the remaining illegal gains. Wang refused to accept the judgment and filed an appeal with Shanghai No.1 Intermediate People¡¯s Court (hereinafter referred to as the ¡°Shanghai No. 1 Intermediate Court¡±).

[Case Study]

In August 2018, Shanghai No. 1 Intermediate Court heard the case in public. A prosecutor assigned by the No. 1 Branch of Shanghai People¡¯s Procuratorate appeared before the court to perform the duty of prosecution. The appellant Wang and the appellant¡¯s defender were present in the court for trial. Wang claimed that he had no intent of cashing in on the settlement error and his act didn¡¯t constitute a criminal offence, thus requesting the court to reverse the original judgment and declare him not guilty. But the prosecutor held that the facts ascertained by the court of first instance were clear, and the evidence was true and sufficient, thus suggesting the court reject the appeal and uphold the original judgment.

The focus of dispute in this case was whether Wang¡¯s act constituted a crime.

Wang argued that the act of ¡°click farming¡± was only meant to increase the store¡¯s sales with no intent of cashing in on the platform¡¯s error and that he was unaware of the platform¡¯s paying at a premium. Wang¡¯s defender claimed that ¡°false high prices, ultra-low discounts¡± and ¡°click farming¡± had been the marketing strategies of the store for a long time with no intent of unlawful possession, and the act of gaining profit passively due to the error of the platform¡¯s settlement system should be considered as a civil act of unjustified benefit. But the prosecutor alleged that, Wang began to adjust the prices and discounts after learning the platform¡¯s settlement error; Wang performed the act of click farming unrestrainedly from 12:00 midnight to 5:00 a.m. every night to obtain the money returned by the platform for the price difference out of discounts; Wang showed an obvious intent of unlawful possession and his act showed the attributes of secret steal, so Wang¡¯s act constituted the crime of theft.

After hearing the case, Shanghai No. 1 Intermediate Court held that, Wang had been using 8 cell phones to unrestrainedly cash in on the platform by means of the bogus transaction of intensive ¡°click farming¡± at midnight every day and obtained a total of over RMB 2,07 million although he was fully aware that an error had occurred to the platform¡¯s settlement system, and the amount involved was extremely large, and he splashed out freely after the money was withdrawn, which was enough to prove that he had a subjective intent to illegally possess other people¡¯s money, and that his proactive act was no longer an act of gaining unjustified benefit passively but constituted the crime of theft; the court of first instance had taken into consideration such circumstances as Wang restituting part of the illicit money and having obtained the victim company¡¯s forgiveness, and thus imposed an appropriate sentence by giving a lighter punishment. Therefore, Shanghai No. 1 Intermediate Court ordered to reject the appeal and uphold the original judgment.

[Relevant Laws]

Criminal Law of the People¡¯s Republic of China

Article 264 Whoever steals a relatively large amount of public or private property, or commits theft repeatedly, or commits burglary, or steals or pickpockets with a lethal weapon, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance and be concurrently or separately fined. If the amount is huge or there are other grave circumstances, he/she shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years and be concurrently fined. If the amount is especially huge or there are other especially serious circumstances, he/she shall be sentenced to fixed-term imprisonment of not less than ten years or life imprisonment, and be concurrently subject to a fine or confiscation of property.

Article 56 Anyone who commits the crime of endangering national security shall be sentenced to deprivation of political rights as a supplementary punishment; anyone who commits the crime of seriously undermining public order by intentional homicide, rape, arson, explosion, poisoning or robbery may be sentenced to deprivation of political rights as a supplementary punishment.

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Article 55 A term of deprivation of political rights shall be not less than one year but not more than five years, except as stipulated in Article 57 of this Law.

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Article 52 The amount of any fine imposed shall be determined according to the circumstances of the crime.

Article 53 A fine may be paid in a lump sum or in installments within the time limit specified in the judgment. If a fine is not paid upon the expiration of that time limit, the payment shall be compelled. If a person is not able to pay the fine in full, the People¡¯s Court shall demand the payment whenever it finds the person has property for execution of the fine.

If a person has true difficulties in paying due to an irresistible disaster, the fine may be reduced or remitted according to the circumstances judged by the people¡¯s court.

Article 64 All money and property illegally obtained by a criminal shall be recovered, or compensation shall be ordered; the lawful property of the victim shall be returned without delay; and contrabands and possessions of the criminal that are used in the commission of the crime shall be confiscated. All the confiscated money and property and fines shall be turned over to the state treasury, and no one may misappropriate or privately dispose of them.

 

(Writer: Pan Ziqiang of Shanghai No. 1 Intermediate Court)


 


 

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