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大法官釋憲文翻譯(中翻英)
多層次傳銷係指就推廣或銷售之計畫或組織，參加人給付一定代價，以取得推廣、銷售商品或勞務及介紹他人參加之權利，並因而獲得佣金、獎金或其他經濟利益之行銷方式(舊公平交易法第八條第一項參照，又九十一年二月六日修正公布之公平交易法第八條第一項規定亦同)。多層次傳銷，如其參加人取得佣金、獎金或其他經濟利益係基於介紹他人加入其計畫或組織，而非基於參加人所推廣或銷售商品或勞務之合理市價，乃屬不正當之多層次傳銷，蓋此種主要以介紹他人參加而獲利之設計，將成為參加人更加速介紹他人參加之誘因，而後使參加人成幾何倍數之增加，終至後參加人將因無法覓得足夠之「人頭」而遭受經濟上之損失，其發起或推動之人則毫無風險，且獲暴利，破壞市場機能，嚴重妨害經濟之安定與繁榮。是舊公平交易法第二十三條第一項規定：「多層次傳銷，其參加人取得佣金、獎金或其他經濟利益，主要係基於介紹他人加入，而非基於其所推廣或銷售商品或勞務之合理市價者，不得為之。」又同法第三十五條規定，違反前開第二十三條第一項者，處行為人三年以下有期徒刑、拘役或併科新台幣一百萬元以下罰金，顯在維護社會交易秩序，健全市場機能，促進經濟之安定與繁榮，其目的洵屬正當。立法機關衡酌前述多層次傳銷事業統籌規劃行為人之不正當傳銷方式，對於參加人之利益、社會交易秩序、經濟之安定與發展危害甚鉅，乃對該不正當傳銷之行為施以刑罰制裁；並考量法益受侵害之程度及態樣，而選擇限制人身自由或財產之刑罰手段，與罪刑法定原則中之構成要件明確性原則與罪刑相當原則尚無不符，並未逾越必要之範圍，符合憲法第二十三條之規定，與憲法第八條、第二十五條保險信障人民身體自由及財產權之意旨，尚無違背。
Multi-level marketing means a plan or an organization that promotes, distributes or sell certain products or services through its members. All members of a multi-level marketing plan or organization are required to disburse a certain amount of money in exchange of the right to promote or sell goods or services as well as the right to solicit other persons for joining the aforesaid plan or organization and thereby receive commission, awards or economic benefits. (See Paragraph 1, Article 8, previous version of Fair Trade Act; also see Paragraph 1, Article 8, Fair Trade Act amended on February 6, 2012) A multi-level marketing plan or organization shall be condemnable if its members obtain commissions, awards or economic benefits only when they have successfully recruited other members to join the aforesaid plan or organization without marketing or selling products or services at reasonable market prices. It is so construed because a profit-sharing plan or organization designed to increase cash flow simply by recruiting new participants will definitely motivate its members and inspire them to recruit new members and eventually causes the number of members to increase exponentially. In the long-run, those who join the plan or organization at a later stage will suffer financially when they are unable to find sufficient number of heads to join the plan or organization. On the other hand, the founders or promoters of the plan or organization are free from risks and profit greatly from the plan or organization. Eventually, all such founders or promoters distort market mechanism and impair economic stability. With the opinions stated above, Article 23, Paragraph 1, of the previously effective Fair Trade Act prescribed, “No multi-level plan shall be permitted if the members thereof receive commissions, awards or other economic benefits primarily from soliciting other people to join it, instead of from marketing or selling goods or services at reasonable market prices.” Moreover, Article 35 of same statue treats it as a criminal offense and states that those who violate the foregoing Article 23, Paragraph 1, are subject to imprisonment not exceeding three years, detection, and/or a penalty not exceeding one million New Taiwan Dollars. It is clear that Article 35 was appropriately enacted in terms of maintaining the order of trade, enhancing market mechanisms, as well as protecting economic stability and prosperity. Understanding the infringement on the benefits of members, order of transactions, as well as economic stability and prosperity resulted from the organizers, promoters, and/or coordinators of the condemnable multi-level marketing plans or organizations, the legislature imposes criminal punishments on them and meanwhile include the levels and scopes of infringed legal interests into consideration, and at the same time determines the means and measures of criminal punishments to confine either personal freedom or private property rights. Apparently, the criminal punishment prescribed therein is not in contradiction to the principle of clarity and definiteness as well as the principle of punishment fitting crimes under nulla poena sine lege, and does not exceed the scope of necessity mandated by Article 23 of the Constitutional law, and is not in contravention to the rights of personal freedom and property stated in Articles 8 and 15 of the Constitutional law.
