近日,江西南昌铁路运输法院公开审理了一起倒卖车票案件。被告人刘金福因通过抢票软件、替实际购票者抢票,被控倒卖车票罪。法院判处其有期徒刑一年六个月,并处罚金124万元。此案引发网络热议。

Recently, Jiangxi Nanchang Railway Transport Court publicly heard a case of reselling tickets. The defendant, Liu Jinfu, was charged with reselling tickets through ticket snatching software. The court sentenced him to one year and six months'imprisonment and a fine of $1.24 million. The case sparked a heated debate on the internet.

据报道,两年前,刘金福在12306网站实名注册账号935个,进行抢票操作。抢票成功后,向购票人分别收取50元到200元不等的佣金。在不到一年的时间里,刘金福先后倒卖火车票3749张,票面数额120多万元,获利31万多元。

It was reported that two years ago, Liu Jinfu in the 12306 website real name registration account number 935, to carry out ticket snatching operation. After the success of the ticket grab, the buyer is charged a commission of 50 yuan to 200 yuan respectively. In less than a year, Liu has sold 3,749 train tickets with a face value of more than 1.2 million yuan, making a profit of more than 310,000 yuan.

公诉方认为,刘金福多账号登录、不间断进行抢票行为,侵害了国家对火车票的管理秩序,破坏他人的公平购票权,增加了12306网站负担,是法律打击的倒卖车票行为。但很多律师和网友却替刘金富喊冤,虽然他注册了数百个账号,以抢票盈利谋生,但怎么看,这都类似于一对一的代购服务,是一种普通的民事代理行为,与过去的黄牛倒票有着本质性的不同。

Public prosecutors believe that liu jinfu multi-account login, uninterrupted ticket snatching behavior, violated the state's order to train ticket management, undermine other people's fair right to purchase tickets, increased the 12306 website burden, is a legal crackdown on ticket reselling behavior. However, many lawyers and netizens have avenged liu jinfu, although he has registered hundreds of accounts to make a profit, but in how, this is similar to one-on-one purchase service, is an ordinary civil agency behavior, and the past cattle ticket is essentially different.

就算是过去的黄牛,法律也不是一边倒地予以打击。比如有些黄牛,完全靠体力挣钱,或是帮别人排队买票,或是在电脑面前夜以继日地刷票。他们其实是帮那些抢票技巧不熟练、或没有时间抢票的人提供针对性的服务,是靠自己的体力和时间付出劳动,事成后从中收取一定的佣金作为报酬。无论是从法理上,还是从普通人的常识推断上,这样的服务,是为了满足现有购票制度下衍生的代买需求,纯粹属于你情我愿的普通市场交易行为,对购票秩序构不成伤害,也自然不会成为法律追究的对象。

Even in the past, the law has not dealt a one-sided blow. Some scalpers, for example, make money entirely out of physical strength, line up others to buy tickets, or brush them overnight in front of a computer. They are actually to help those who are not skilled in ticket snatching skills, or do not have time to grab tickets to provide targeted services, is to rely on their own physical strength and time to work, after the completion of a certain commission as a reward. Whether from the legal theory, or from the common sense of ordinary people, such a service, is to meet the existing purchase of tickets under the system derived from the purchase of the demand, purely belong to your feelings I wish the ordinary market trading behavior, the order of the purchase of tickets cannot be harmed, and naturally will not become the object of legal investigation.

真正需要打击的是这样一群人。他们与铁路系统内部人员勾结,或是通过其他不正当的途径,占据了大量其他人难以买到的车票资源,囤积起来,以高价卖出去。这样一来,很多人无法通过公共的、正式的渠道买到车票,只能求助于黄牛,忍受他们的宰割和剥夺——这便是多年前让众人厉声痛斥的黄牛之痛,也是法律理应重点打击的倒卖车票行为。

What really needs to be hit is this group of people. They colluded with members of the railway system, or through other improper means, took up a large number of other people's hard-to-buy ticket resources, hoarded and sold at high prices. As a result, many people are unable to buy tickets through public, formal channels, and have to resort to scalpers and endure their mutilations and deprivations – a form of scalpers that many years ago were reviled for and sold tickets that the law should have focused on.

近年来,实名制购票制度的实施,加上12306网站的日益完善,已经基本上从技术上杜绝了这种囤票倒卖赚差价的行为。本案中,刘金福纵使再有能耐,抢票手段五花八门,也必须严格遵从实名制的购票程序,先是一对一式地接受乘客的委托,输入对方的身份证号,以一名普通旅客身份去和其他人展开刷票竞争——这中间没有控制票源、没有囤票、没有出现让人难以接受的暴利和差价、也没有利用特权优势掠夺公共资源,看上去也没有危害社会和价格秩序的后果,同过去那种靠体力和合法技术手段代人买票的行为没有区别,何来违法一说?难道就因为他注册了900多个账号,批量帮人抢票,涉及的金额比较大,就要给他扣上“倒卖”的帽子予以打击?

In recent years, the implementation of the real-name system of ticket purchase, coupled with the increasing perfection of the 12306 website, has basically put an end to this kind of hoarding and reselling to earn the difference. In this case, even if Liu Jinfu is capable of obtaining tickets in a variety of ways, he must strictly abide by the procedures of buying tickets under the real name system, first of all, accept the entrustment of passengers in duplicate, enter the other party's ID number, and compete with others as an ordinary passenger - there is no control over the source of tickets, no hoarding of tickets, no unacceptable huge profits and price differentials, no exploitation of privileged advantages to plunder public resources, no seemingly harmful to the social and price order, and no difference from the past act of buying tickets on behalf of people by means of physical and legal technology. Is it because he has registered more than 900 accounts, bulk to help people get tickets, involving a relatively large amount of money, he will be \"resell\" the hat to hit?

当然,也不是说刘金富的行为就一定值得鼓励。平心而论,他从事的抢票服务,客观上会导致对其他购票者的不公,毕竟不是谁都愿意每天花数十个小时刷屏点击,或者刻意钻研抢票技巧,来确保抢票的成功。相较于刘金福的“老成专业”,普通人显得弱势被动,购票机会因而被剥夺。

Of course, it is not that Liu Jinfu's behavior must be encouraged. To be sure, his ticket-snatching service can objectively lead to unfairness for other ticket buyers, after all, not everyone is willing to spend dozens of hours a day brushing the screen or deliberately delve into ticket-snatching techniques to ensure success. Compared with Liu Jinfu's \"old professional \", ordinary people appear weak and passive, and the opportunity to buy tickets is thus denied.

但这种购票竞争力上的强弱之别,同过去囤积居奇、倒买倒卖行为的危害,显然不在一个量级上,一味靠法律严加管束,未免显得苛刻且不近人情,有“大炮打蚊子”之嫌,不符合刑法的谦抑精神。退一步说,如果硬要把抢票赚差价的行为视作一种违法犯罪的话,那么与刘金福操作如出一辙的、各大抢票平台的付费抢票行为的“破坏力”岂不是更胜一筹?如果刘金福有限的代买操作都要被法办的话,那企业的更大规模、更大数量、更具技术优势、甚至收费更高的抢票操作,岂不是更要从重从严处罚?

However, the difference between the competitive strength of this kind of ticket purchase, and the past accumulation of strange, the harm of buying and reselling behavior, obviously not in the same order of magnitude, blindly relying on the law to strictly control, is rather harsh and inhuman, has the suspicion of \"cannon mosquitoes \", not in line with the spirit of modesty in criminal law. Step back, if the act of making the difference as a crime, then the same as the operation of liu jinfu, the major platforms to pay for the \"damage\" is not better? If liu jinfu's limited buying operations are to be dealt with by law, then the enterprise's larger scale, larger number, more technical advantages, and even higher fees for ticket snatching operations, is not more severe punishment?

据媒体报道,刘金福曾实名举报了携程网、飞猪网、高铁管家等抢票软件,公安机关回复是查无实据。这就让人纳闷,为何企业的抢票行为就被默认为一种商业服务,游离在法律的监管之外,而个人就要面临司法处罚,遭遇牢狱之灾呢?这种对企业和个人的显而易见的区别对待,岂不是对公平的更大伤害,给人一种欺软怕硬的观感?这岂不是更容易引发普通人的不满和被剥夺感?

面对企业推出的各类抢票软件的干扰,12306方面回应说,为了保障用户权益,他们已经从技术上屏蔽了多个抢票软件渠道。同理,对刘金福这样的专业个体抢票者,是不是也可以从技术上加以防范,而不是动辄使用刑责,让当事人承受过于严重的代价呢?

Faced with the interference of various kinds of ticket snatching software introduced by enterprises,12306 parties responded that in order to protect the rights and interests of users, they have technically blocked a number of ticket snatching software channels. In the same way, to Liu Jinfu such a professional individual ticket snatchers, can also be technically guarded against, rather than the frequent use of criminal liability, let the parties bear too serious a price?

刘金福的遭遇并非孤例。2019年,黑龙江人孙长龙也因为帮人抢票赚差价,被判有期徒刑六个月,缓刑一年。再往前推,2013年佛山一对刚结婚的小夫妻,因帮助不会上网订票的农民工订火车票,并收取10元手续费,当地警方以涉嫌倒卖车票罪将其刑拘。

Liu jinfu's experience is not isolated. In 2019, Sun Changlong, a Heilongjiang native, was also sentenced to six months in prison, suspended for one year, for helping people earn the difference. Further forward, in 2013, a young married couple in foshan were detained by local police on suspicion of reselling tickets for a 10-yuan service charge for helping migrant workers who could not book tickets online.

一方面,法律上并没有完全禁止火车票的个人有偿代理,而另一方面,现实中,个人的代购抢票行为频频被法办。很多代买者被抓时都不知道自己犯了法,旁观者则一次又一次地摇头唏嘘。如果一项司法的实务操作,从根本上没有法理的过硬支持,又明显违背了普通人的常规理解,是不是应该好好反思一下,至少出台一个明确统一的、各方都能接受的、关于倒票行为的认定标准,不要让这类匪夷所思的判决一次次地冲击人心呢?

On the one hand, the law does not completely prohibit the train ticket of the individual paid agent, on the other hand, the reality of the individual's purchase of tickets is frequently legalized. Many generations of buyers were caught unaware of their transgressions, while onlookers shook their heads again and again. If the practice of a judicial operation, from the fundamental lack of good legal support, but also clearly contrary to the conventional understanding of ordinary people, it should be a good reflection, at least a clear and unified, all parties can accept, the determination of the conduct of the vote, do not let such unthinkable judgments hit the hearts of the people again and again?


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