Whether the act of helping to withdraw money in the crime of online fraud can be considered an accomplice of "fee settlement"?

Guangqiang economic crime team sorted out

Keywords: online fraud to help withdraw money common crime cost settlement type

Abstract: Through the analysis of the text of the judgment documents, it can be seen that there is a chaotic situation in the judicial organs in the determination of the crime of online fraud to help withdraw money, which is manifested in the diversification of the crime and the main accessory. The special provisions of article 7 of the Several Interpretations on the Specific Application of Law in the Handling of Criminal Cases of Fraud should be avoided, and the knowledge should be limited to a specific understanding of online fraud, not a general understanding. The withdrawal of money by natural persons cannot be identified as "cost settlement" accomplices, and under this complicity system, the status of attempts and the status of crimes must also be specifically judged.

According to data released by the China Judicial Big Data Research Institute in December 2019, from 2016 to 2018, more than 48,000 cybercrime cases were concluded in the first instance by courts at all levels across the country, accounting for 1.54% of the total number of criminal cases, and the number and proportion of cases showed an upward trend year by year. A total of 258 crimes were involved in cybercrime cases nationwide, of which the highest proportion of fraud cases was 31.8%, while the proportion of cases in which two or more people jointly committed crimes in cybercrime showed a trend of increasing year by year.

Factors such as the number of people involved in the crime of online fraud, the complexity of the form, and the secrecy of the means have also seriously affected the accurate determination of the judiciary. In particular, the determination of the behavior of "helping to withdraw money" in the most downstream of the "industry" has caused great controversy in theory and practice.

I. The chaotic status quo of judicial determination

For the judicial determination of aiding the withdrawal of money, based on the relevant judgments, a total of 8 causes of action were found in 336 first-instance judgments, of which 220 were fraud, accounting for 65%; 100 crimes were committed by concealing or concealing crimes, accounting for 30%; other types of crimes such as obstructing credit card management, infringing on citizens' personal information, credit card fraud, contract fraud, theft, and illegal business operations totaled 16 cases, accounting for 5%.

It can be found that the specific qualitative disputes over the act of aiding the withdrawal of funds are manifested in two aspects: one is that the phenomenon of judicial judgments being different from the same case is prominent, and the other is that it is difficult for the procuratorate and the court to unify their opinions during the trial of the case.

(1) Judicial judgments are made in the same case and different judgments

In the (2019) Anhui 0323 Xingchu No. 194 Criminal Judgment, defendant Zhang was responsible for withdrawing money after the fraud was successfully implemented, and the court held that because Zhang had the fact of "persuading defendant Zhu not to commit fraud", it was found that defendant Zhang had conspired before withdrawing money, thus finding that defendant Zhang constituted a joint perpetrator of the crime of fraud.

In the (2019) Jin1030 Xingchu No. 20 Criminal Judgment, defendant Chen mou knew that Luo was committing fraud, but still provided a bank card and helped withdraw money, and the court held that it only constituted the crime of concealing and concealing the proceeds of crime.

In fact, the former is less socially harmful than the latter, both in terms of subjective performance and objective behavior, but the actual judgment of the former is heavier than the latter.

(2) The procuratorate and the court have different opinions

In the (2018) Qing 0105 Xingchu No. 176 Criminal Judgment, the defendant knew that it was the proceeds of crime, but still provided his bank card to help withdraw cash and profit, the public prosecution organ believed that it constituted the crime of fraud, and the court held that it only constituted the crime of concealing and concealing the crime of offense.

In the (2019) Su 0281 Xingchu No. 1631 Criminal Judgment, the court held that the defendant knew that others were committing fraud, but still provided help such as receiving QR codes, and his behavior had constituted a joint crime of fraud, and corrected the crime of concealing and hiding the crimes prosecuted by the public prosecution organs.

In the two cases, the defendant knew that the property he helped to withdraw was illegally obtained, Wang provided a bank card and arranged for personnel to cash out the stolen money, and Zheng Moujia provided help such as QR code collection, the two were essentially the same behavior, but in the end, whether it was the public prosecution organ or the trial organ, the conclusion was completely different.

In addition, there are many controversies over the determination of the principal and accessory. In the (2017) Su 0612 Xingchu No. 801 Criminal Judgment, the public prosecution organ that provided the bank card and the linked telephone card used by the defendant for fraud found that it constituted an accomplice to the crime of fraud, and the court recognized the characterization of the accomplice of the crime of fraud, but held that the public prosecution organ found the main offender improper and adjusted him to an accessory.

II. Characteristics and core issues of judicial chaos

Summarizing the core issues of the above typical cases, it can be found that the behavior of helping to withdraw money in the crime of online fraud has the following characteristics:

First, the defender or defendant often proposes that the person assisting in the withdrawal does not constitute an accomplice to the crime on the grounds that he does not have subjective knowledge, that is, the defendant did not know that the money was the proceeds of crime when he carried out the act of assisting in the withdrawal of money;

Second, the court does not automatically determine that the perpetrator of the act of aiding the withdrawal of money has a joint intention to contact with the perpetrator constitutes an accomplice to the crime of fraud, especially in the case of the perpetrator of the fraud crime being prosecuted in a separate case or not coming to the case, and it is also common to determine that the crime of concealment or concealment of the crime of the crime is also common;

Third, the boundary between the crime of fraud and the concealment and concealment of the proceeds of crime lies in online fraud

The determination of the act of helping to withdraw money is relatively vague, and the relevant judicial judgments have not been able to confirm the boundaries of the details through the reasoning part.

Through the analysis of the three characteristics of online fraud to help withdraw money, this paper believes that the core of the dispute in judicial practice in such cases is the characterization of the subjective and intentional determination of the person who helps the withdrawal and the time node of the intervention of the helper.

Specifically: First, to help the withdrawal actor determine the subjective intention. Although some people believe that the Several Interpretations on the Specific Application of Law in the Handling of Criminal Cases of Fraud (hereinafter referred to as Article 7 of the Interpretations) resolves the obstacle to the one-sided determination of joint criminalization, there is still controversy over how to fundamentally resolve the inadequacy of legal logical arguments and the application of judicial interpretations themselves.

Second, the time of intervention in the act of aiding the withdrawal of money and its role in the overall criminal act will affect the conviction of the perpetrator, and the difference in the determination of this is also more obvious.

3. Reinterpretation of Article 7 of the Interpretation

Article 7 of the Interpretations stipulates that whoever knowingly commits a fraud crime and provides him with assistance such as credit card mobile phone cards, communication tools, communication transmission channels, network technical support, and fee settlement shall be punished as a joint crime. In practice, there are two types of acts punishable by joint criminality:

The first is to provide credit cards, mobile phone cards, communication tools, communication channels, and network technical support assistance for others knowing that they have committed fraud crimes. This kind of assistance can only occur before or during the commission of the crime, and is itself an integral part of the crime of fraud, and there is no doubt that the crime of fraud can be established.

The second type is to provide assistance such as fee settlement when it is known that others have committed a fraud crime. In judicial practice, the reason for adjudicators to apply this paragraph is to include the act of helping to withdraw money into the "settlement of expenses", that is, after the criminal offender of telecommunications fraud controls the victim's money, the act of helping the withdrawr to hold a bank card provided by the telecommunications fraud perpetrator and withdraw the money is formally in line with the assistance requirements for providing "fee settlement" in the Interpretation.

However, some scholars believe that the subjects of the Interpretation that provide assistance in fee settlement should be restricted, that is, they should be restricted to specialized institutions such as relatively specialized "underground money banks", not including individuals. Its act of "providing fee settlement" is not simple and individualized, but should specifically refer to providing a fund payment system for fraud, and then transferring and withdrawing stolen funds for it, or "under the sign of fund management services, specially providing transfer and withdrawal of stolen funds services for fraud dens, so that the remittances fraudulently obtained by victims are transferred to different accounts in a short period of time and quickly withdrawn in different places", which means that when one-sided accomplices are punished, the subject is limited to the scope of the unit, rather than the natural person crime pointed to in this article. Therefore, there should be a specific legal basis for natural persons to help withdraw money.

Fourth, the characterization of the act of aiding the withdrawal of funds shall distinguish between natural persons and crimes committed by units

In general, for the characterization of the act of aiding withdrawal in online fraud, it is necessary to distinguish between natural persons and unit crimes.

In view of the act of helping a natural person to withdraw money, when the person who assists the withdrawing person conspires with the perpetrator of the fraud, there is no doubt that it is directly identified as an accomplice to the crime of fraud.

When there is insufficient evidence to prove that the person who assists the withdrawal knows that the money is the proceeds of fraud, it is at most deemed to be the crime of concealment or concealment.

When it can be proved that the person who helps the withdrawer knows that the money is the proceeds of fraud, and takes the control of the fraudster over the money as the standard, if the bank card or account that helps the withdrawn person withdraw money has been under the control of the fraudster (for example, helping the withdrawner to use the account provided by the fraudster to withdraw money), at this time, the defrauded funds have been established since they entered the account. Subsequent withdrawals have no influence on fraudulent acts, and only establish a cover-up and concealment of criminal proceeds.

If the bank card or account that helps the withdrawr withdraw money is not under the control of the fraudster (such as helping the withdrawr's own bank card, etc.), the fraudster actually has too much uncertainty about the control of the money, so it is necessary to move the time node of the determination of the fraud crime to the time node of helping the withdrawr transfer the money to the perpetrator, and the transfer and withdrawal of cash by the cashier have a key impact on the establishment of the fraud crime and should be found to be an accomplice to the crime of fraud.

For specialized and specialized institutions engaged in the settlement of fees, if they meet the "knowing" determination in article 7 of the Interpretations, they can be directly applied and found to be accomplices to the crime of fraud.

Disclaimer: This article is only for learning and research purposes, not for commercial purposes, if you infringe on your rights and interests, please leave a message to contact.

#Cyber Scam ##共同犯罪 #