"As usual", "two highs and one part" strike hard

In recent years, the criminal activities of telecommunications network fraud have continued to be high and frequent, and in 2020, the national telecommunications network fraud cases involved property losses of 35.37 billion yuan.

On the 22nd, the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security jointly issued the Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases involving Telecommunications Network Fraud (II), which put forward a clearer and more specific basis for applying the law to telecommunications network fraud crimes and related crimes involving mobile phone cards and credit cards, and to carry out a full-chain and all-round crackdown on telecommunications network fraud crimes.

The three departments jointly issued opinions

Punish telecommunications network fraud

In 2016, the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security jointly issued the Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases Such as Telecommunications Network Fraud (I). Nowadays, with the rapid development of modern communications and mobile payment technology, especially the unprecedented intensification of crackdowns in China, a large number of fraudulent dens have been transferred abroad, and illegal transactions of mobile phone cards and credit cards have become more and more rampant.

On the basis of Opinion I, Opinion II provides for new and conspicuous problems in judicial practice, such as the jurisdiction of telecommunications network fraud cases and related criminal cases, the collection of evidence in cross-border telecommunications network fraud criminal cases, the handling of criminal cases involving mobile phone cards and credit cards, that is, the so-called "two cards", and the application of policies for handling telecommunications network fraud crimes.

The "Opinion II" specifically stipulates that if there is evidence to prove that the perpetrator has participated in a criminal group or criminal gang outside the country to carry out telecommunications network fraud crimes against domestic residents abroad, and the amount of fraud is difficult to verify, but if he leaves the country to go abroad within one year for more than 30 days or multiple times to go abroad to go to the den of fraud crimes, it shall be found to be "other serious circumstances" provided for in article 266 of the Criminal Law, and criminal responsibility shall be pursued for the crime of fraud in accordance with law.

Telecommunications network fraud crimes are generally group crimes or gang crimes, and have the characteristics of strict organization, large number of people, and clear hierarchies. The opinions are clear, and the main elements, main criminals, repeat offenders and repeat offenders of fraud groups are resolutely given heavier punishments. For first-time offenders, occasional offenders, minors, and students in school, their status and role, subjective malignancy, attitude toward admitting guilt, expression of repentance, and so forth, shall be given a lenient punishment in accordance with law.

Highlight the fight against "two cards" crimes

Cut off the chain of crime

Cracking down on "two cards" crimes is a key link in cutting off the help chain of telecommunications network fraud crimes, curbing the high incidence of telecommunications network fraud crimes, and strengthening the governance at the source.

Opinion II clarifies the specific legal standards for the application of the crime of illegally trading "two cards" to help the information network criminal activities. It provides that where credit cards, bank accounts, mobile phone cards, traffic cards, etc. are acquired, sold, or leased for the purpose of others using information networks to commit crimes, it may be found to be "helping" conduct as provided for in criminal law article 287-2.

"Opinion II" stipulates that the perpetrator knowingly uses the information network to commit a crime, and the number of payment and settlement assistance such as credit cards, bank accounts, and non-bank payment accounts for his crime reaches 5 or more, or the number of acquisition, sale, or rental of other people's mobile phone cards, traffic cards, and other communication tools to help him or so on, reaches more than 20, so as to help pursue criminal liability for the crime of information network criminal activities.

The "Opinion II" also stipulates that if the perpetrator of the fraud has not yet arrived at the case, he may first pursue the criminal responsibility of the criminal offender who has already arrived at the case in accordance with the law, so as to improve the efficiency of handling the case and ensure that the crime is not trivialized.

The principle of "great jurisdiction" shall be applied to telecommunications network fraud crimes and related crimes

Telecom network fraud crimes continue to show a trend of chaining and industrialization, a large number of mobile phone cards, credit cards have become criminal tools, WeChat, Douyin and other new social software and hardware equipment such as "cat pool" are used for criminal activities, in this regard, "Opinion II" further improves the jurisdiction of telecommunications network fraud crimes and related criminal cases.

The "Opinion II" brings into the scope of jurisdiction the place where mobile phone cards and credit cards are opened, sold, transferred, and hidden for telecommunications network fraud crimes, where instant messaging information such as WeChat and QQ are sent and arrived, and where network hardware devices such as "cat pools" are circulated, and continue to adhere to the principle of "great jurisdiction" over telecommunications network fraud crimes and upstream and downstream related crimes, to ensure the smooth advancement of case handling and litigation, and to crack down on such crimes more accurately and efficiently.

In order to solve the problem of the long time and low efficiency of collecting evidence materials in cases handled in different places, the "Opinion II" stipulates that the public security organs at the place of handling cases may use the information system to obtain relevant evidentiary materials such as case registration forms, case filing decisions, and victim statements produced by public security organs in different places in accordance with law, and have made corresponding strict regulations on the personnel to be transferred, the form of collection, and the procedures for collection.

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【Source: Rule of Law Xinzhou】