＂Reselling＂ or ＂purchasing＂？ The man who robbed the train ticket for a fee was sentenced to controversy in the first instance.

CCTV News:Nowadays, "purchasing" is familiar to everyone, such as finding someone to buy a cup of milk tea, purchasing home appliances and bags overseas, etc. Under the huge demand, many people also smell business opportunities. Liu Jinfu, a young man from Jiangxi Province, is one of them. Two years ago, he started a self-righteous "purchasing" business. However, because of the extremely special items he bought, he was not only sentenced, but also whether his behavior belonged to "purchasing" or "reselling" caused great controversy. Such special items were train tickets.

The public prosecutor accused the defendant of the crime of reselling tickets.

On September 10, 2019, in the trial court of Nanchang Railway Transport Court, a case of reselling tickets was being heard in public. The public prosecutor accused the defendant Liu Jinfu of grabbing tickets for the actual ticket buyers through the ticketing software, which constituted the crime of reselling tickets in the criminal law. During the trial, Liu Jinfu confessed to the situation of grabbing tickets and collecting service fees, and said that he did not know that he was engaged in suspected crimes before.

Defendant Liu Jinfu:I don’t know whether it is illegal or not to rob it on behalf of the internet. I just hope that the court will decide according to law.

Liu Jinfu, a 30-year-old, has been working in other places since he graduated from school. In recent two years, due to his parents’ poor health, he quit his job in other places and returned to his hometown, intending to find a job close to home to take care of his parents. According to family memories, Liu Jinfu saw that some people around him were doing online ticketing business, and the income was good. Moreover, many third-party ticketing platforms also had the function of charging service fees to grab tickets for others. Therefore, Liu Jinfu also began to think about doing this to make money.

Liu Jinfu’s family:We didn’t know this was against the law, and all the third-party ticketing platforms were engaged in it. This should not be against the law. If he knew, he would be told not to do it. He has so much money for his own work a month.

Buy ticketing software and publish advertisements to grab train tickets for profit.

Since July 2017, Liu Jinfu has set up a so-called studio in a residential building near his home, purchased ticketing software, and posted advertisements on mobile phones and computers to help people grab train tickets and earn service fees. According to the situation ascertained by the court, as of February 2019, Liu Jinfu had grabbed more than 3,700 tickets for others, with a face value of more than 1.2 million yuan and a personal profit of more than 300,000 yuan.

During the trial, the biggest controversy between the prosecutor and the defender lies in whether Liu Jinfu’s behavior is "reselling" or "purchasing". In view of this view, the public prosecution agency believes that Liu Jinfu’s behavior still constitutes the crime of reselling tickets, even under the condition of real-name registration system for train tickets.

Prosecutor:Since the implementation of real-name registration system ticket sales in the national railways, the criminal means of hoarding tickets first and then reselling them at a higher price has been unable to be realized. Some people think that the crime of reselling tickets no longer exists, and it is a reasonable civil agency behavior to help people buy tickets, but in fact, there are still acts of reselling tickets under the cloak of booking and purchasing.

Is it "reselling" or "purchasing"? It has become the biggest controversy between the prosecution and the defense. Although the two sides have different views, they all revolve around two key words, that is, "online ticket purchase" and "train ticket real-name registration system". This is also a great change in the way we buy tickets and ride in the past decade. Under such a background, is it still possible to resell train tickets? Is it illegal to use the ticketing software?

Back in 2010, the railway department opened the 12306 website to provide users with information services such as the number of trains, fares, remaining tickets, etc. In 2011, the 12306 website added an online ticket purchasing function, so that people could buy tickets without leaving home and moving their fingers. At the same time, the way of purchasing tickets has changed. In 2012, real-name registration system for train tickets was implemented throughout the country, and it is necessary to verify personal identity information when buying tickets. This move also cracked down on the illegal sale of train tickets to a certain extent, but then, a software called "online ticket grabbing" was developed and widely used. Once upon a time, online ticket grabbing at the end of the year became a new term in Spring Festival travel rush.

Two mobile phones and two computers, these are the crime tools seized by the police in Liu Jinfu’s studio, and they are also all the tools he was accused of robbing tickets.

According to the court’s investigation, in addition to the ticketing software "Paradise" and "bottomless pit", Liu Jinfu also bought coding at the price of 10,000 30 yuan, and illegally purchased 935 real-name registered accounts of 12306 website at the price of 2,740 yuan. After each order is received, Liu Jinfu automatically cracks the login verification picture of the 12306 website by consuming "coding" through the ticketing software, thus realizing automatic and repeated login of multiple accounts at the same time and uninterrupted brushing of purchase information.

So what is the principle of running the ticketing software? What role does the so-called "coding" play? According to the engineer, the difference between ticketing software and manual ticketing lies in the efficiency of operation. According to the engineer, the 12306 website has set up a variety of prevention and control measures against malicious ticketing software, and the ticketing software has also specially developed the corresponding cracking function. While completing automatic login and quick ticket brushing, some online scalpers will also use the bought real-name information to grab tickets first, control the ticket source, and then refund the tickets after receiving the booking information, and immediately grab tickets for the customers who actually bought tickets, so as to improve the success rate.

Whether it constitutes the crime of "reselling tickets" is diametrically opposed by both the prosecution and the defense.

During the first trial of the case, there was not much dispute between the two sides about Liu Jinfu’s behavior of grabbing tickets, that is, the factual part of the case, but they held diametrically opposite views on whether Liu Jinfu’s behavior constituted the crime of reselling tickets in the Criminal Law.

According to the public prosecutor’s opinion, "scalping tickets" in criminal law refers to the serious behavior of hoarding a large number of tickets or controlling the source of tickets by taking advantage of them for profit, and then selling them to unspecified people. The public prosecutor believes that "reselling" is not defined in legislation as buying first and then selling. The mode of using the ticketing software to brush a large number of tickets is no different from that of ordinary scalpers and ticket sellers. They all control the tickets and then sell them at a high price. Defenders, on the other hand, believe that reselling means buying first and then selling, and the ownership changes accordingly. In the case of real-name registration system train tickets, the ownership of the tickets always belongs to the customers, and there is no transfer problem.

In this regard, the prosecutor believes that after Liu Jinfu grabbed the ticket, the 12306 website will automatically generate an electronic order for the train ticket, and before handing it over to the actual ticket purchaser, Liu Jinfu actually controlled the ownership of this electronic certificate.

The public prosecutor also believes that the defendant Liu Jinfu used the ticketing software and purchased the 12306 account, and took abnormal ticketing measures under the condition of limited ticket resources, which not only increased the burden on the 12306 website server, but also affected the normal operation of the computer system and the normal order of ticket purchase, and also caused the loss of interests of other passengers and infringed on the property rights of citizens.

In this regard, the defender believes that Liu Jinfu negotiated the price of the service fee with the customer before grabbing the ticket, which is a voluntary act of both parties. The reason why other passengers can’t buy tickets is not Liu Jinfu, but the contradiction between supply and demand in the market. Liu Jinfu buys tickets in the same way as other passengers, but the difference is that the ticketing software is used, and the law does not prohibit the use of ticketing software. The prosecutor believes that this is not the key to the crime of reselling tickets.

He was sentenced to one and a half years in the first instance and fined 1.24 million yuan.

On September 13, 2019, Nanchang Railway Transport Court pronounced the case in the first instance, and sentenced the defendant Liu Jinfu to one year and six months in prison and fined RMB 1.24 million for the crime of reselling tickets. After the verdict was pronounced in the first instance, Liu Jinfu filed an appeal. According to the lawyer, the Nanchang Railway Transport Intermediate Court is scheduled to hold a hearing on the case on November 30.

According to experts, the crime of reselling tickets is a concrete manifestation of the crime of speculation and profiteering in the Criminal Law of 1979. When the Criminal Law was revised in 1997, the crime of speculation was abolished and the crime of reselling tickets was added. So what is the meaning of reselling in legislation?

Professor Wang Zhiyuan, School of Criminal Justice, China University of Political Science and Law:Historically, the criminal law in 1979 mainly cracked down on scalping, such as short selling, hoarding, and arbitrage and resale. Then they have a common feature, that is, buying hoarding first and then selling. Such a common feature can also be put on scalping tickets.

At the beginning of legislation, an important legal interest that it wants to protect is the order of ticket sales and management, so some experts believe that this is also the focus of determining whether it constitutes the crime of reselling tickets.

Some experts believe that in addition to protecting ticket management and sales order, with the development of the times, the nature of tickets has changed, so this law should emphasize the protection of passengers’ fair ticket purchase rights. Experts believe that judging whether a person’s behavior constitutes "ticket scalping crime" depends not only on whether he infringes on the legal interests protected by the crime of ticket scalping, but also on whether his behavior constitutes "ticket scalping", which is why some people think that "ticket scalping" is no longer possible under the background of real-name registration system.

However, some experts believe that with the development of train tickets in real-name registration system, the forms of reselling have also changed, and it is not necessary to "hoard and then sell at a higher price" to constitute the crime of reselling tickets.

During the trial, Liu Jinfu’s defense lawyer always stressed that with the real-name registration system of train tickets, the online scalper like Liu Jinfu and the actual ticket buyer should be defined as a civil entrustment relationship, and both belong to the buyer relative to the railway ticketing department. So, is it possible to conclude that it is not illegal to collect fees for purchasing tickets?

Should the developers of ticketing software also bear legal responsibility?

Liu Jinfu was sentenced to one year and six months’ imprisonment in the first instance. If this behavior of Liu Jinfu violated the law, should the developers and buyers and sellers of the ticketing software he used bear corresponding legal responsibilities? Experts believe that people who specialize in developing software for cyber crimes can be punished as crimes of helping information network crimes, while those who buy and sell malicious ticketing software on the Internet should be analyzed according to the size. In this case, Liu Jinfu and his family feel that his behavior is the same as that of the third-party ticketing software to help people speed up the ticket grabbing. If his behavior constitutes a crime of reselling tickets, are these websites also suspected of committing crimes?

Liu Jinfu’s defense lawyer in the second instance noticed that Liu Jinfu had reported a number of third-party ticketing software suspected of reselling tickets to the public security department before the trial in the first instance, but according to a statement issued by the railway police Department on August 20, 2019, Liu Jinfu’s report was "not verified".

Then, from the perspective of software operation principle and technology, is it the same between the third-party ticketing platform and the so-called malicious ticketing software?

Some experts said that unlike Liu Jinfu who grabbed tickets for others, some third-party ticketing websites have obtained corresponding business qualifications. As for whether it is reasonable to charge service fees, it is another legal issue. However, some experts believe that although some third-party ticketing platforms have relevant qualifications, if these platforms attract users through ticketing software and make profits, it will also undermine the normal ticketing order.

The difference between Liu Jinfu and the legal ticketing website still needs a clear legal definition. Coincidentally, when Liu Jinfu was arrested on suspicion of reselling tickets, that is, during the period of Spring Festival travel rush this year, the 12306 website began to promote the automatic standby ticket purchasing function. When the tickets were sold out, passengers did not need to refresh the website again and again to see if there would be a refund. With the launch of this new function, the online ticketing business like Liu Jinfu will eventually fade out of sight.

With the rapid development of society and the iteration of scientific and technological renewal, new problems will always appear in the new environment, and the dispute over reselling real-name train tickets will continue. Which behaviors belong to the market behavior, which behaviors need to be attributed by the most severe punishment means, and between crime and non-crime, the court will finally make a fair ruling. We will continue to pay attention to this case.