Distinguish between three dimensions to grasp the criminal relationship of illegally providing supporting documents

Amendment (XI) to the Criminal Law amends the relevant provisions on the crimes committed by intermediary organization personnel, adding intermediary organization personnel who have been identified as the main body of the intermediary organization such as asset appraisal, capital verification, accounting, auditing, legal services, etc., as the main body of the crime; on the basis of the original first-class sentence, the provisions of "fixed-term imprisonment of not less than five years but not more than ten years and a fine" are added; the intermediary organization personnel who accept bribes are punished by providing false certification documents. It embodies the spirit of strict legislation. Since the criminal acts of intermediary organization personnel illegally providing supporting documents often serve or obey the main criminal acts such as "routine loans", it is easy to raise the question of whether to evaluate as an accomplice to the main crime or to independently determine the crime of intermediary organization personnel, it is recommended to consolidate the determination of relevant criminal elements from the following three proof dimensions.

Starting from the dimension of subjective knowledge, it reveals the intentional contact and cognitive content between the intermediary organization personnel and the main criminal personnel. As a relatively neutral professional and technical industry personnel, because of their professional characteristics, they need to have business contacts with relevant units and personnel, and when they violate the rules of practice and use their professional skills to help others commit crimes, they are mostly convicted and punished according to the proprietary crimes set by the criminal law, such as the crime of helping information network criminal activities, the crime of illegally providing credit card information, etc. If they want to constitute the accomplices of the main crime they help, there are more stringent subjective requirements and proof requirements. If subjectively it is only known that others are using information networks to commit crimes, but it is not known exactly what kind of crimes are committed, or although it is known what kind of crimes are committed by others, the specific process and details of the crime are not known, it is generally still necessary to help the information network criminal activities to be punished. The relevant crimes committed by intermediary organization personnel are more characterized by the independence of behavioral evaluation. In judicial practice, some people have argued that the notary public providing supporting documents is determined as an accomplice to the main crime he or she assists in determining independently according to his specific crime, mainly subjectively, if subjectively knowing that others are committing the crime of "routine loans", it constitutes an accomplice to the main crime such as fraud. The main basis for this judgment is the Opinions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Handling of Criminal Cases of "Routine Loans" (hereinafter referred to as the "Opinions"), which stipulates that those who knowingly commit the crime of "routine loans" by others and assist in the handling of notarization shall be punished as accomplices in the relevant crimes, except as otherwise provided by the Criminal Law and judicial interpretations. The author believes that the understanding and application of the Opinions cannot be simply evaluated by accomplices, but must correctly grasp the subjective and objective conditions for the establishment of joint crimes. The criminals of "routine loans" clarify the real estate guarantee relationship between them and the victim through notarization, and then use illegal means to create the fact that the victim is in breach of contract, and achieve the purpose of illegally occupying the victim's property in accordance with the conditions agreed in the notarized documents. The act of a notary public issuing a notarized document is objectively conducive to the implementation of the crime of "routine loans", but it cannot be used alone to pursue the criminal responsibility of the notary public, especially the criminal liability of its accomplices in fraud and other crimes. Subjective knowledge should be understood as a specific crime such as knowing that fraud was committed, and the requirements for criminal proof should reach a certain level of certainty, and objective attribution should be prevented. How to prove the subjective knowledge of intermediaries, the "Opinions" require a comprehensive analysis and determination of subjective and objective factors such as the perpetrator's cognitive ability, previous experience, the number and means of conduct, the relationship with co-defendants and victims, the profit situation, whether he has been punished for "routine loans", and whether he has deliberately evaded investigation and punishment. Although a notary public has issued an untrue supporting document, it may be found to be a major misrepresentation of the certification document without excluding its intentional issuance; although it was issued intentionally, but the degree and content of the knowledge did not meet the requirement of knowing in the sense of accomplice, it may be found to be the crime of providing false supporting documents.

Starting from the dimension of proof of objective participation in the sharing of stolen profits, the degree of involvement of intermediary organization personnel in the process of committing the main crime is verified. Whether or not to participate in the sharing of the proceeds of the stolen goods is a relatively easy criterion for determining whether the intermediary organization personnel constitute accomplices to the main crime or constitute independent crimes. Intermediary organization personnel who commit joint crimes with other personnel to obtain illegal benefits may be explicitly and directly involved in the sharing of the stolen goods, or they may implicitly receive seemingly legal remuneration by providing false supporting documents. In the former case, attention should be paid to collecting objective evidence such as bank flows, transfer records of online payment tools such as WeChat, and subjective evidence such as the testimony of co-defendants, and those who participate in the sharing of stolen goods may directly determine that their conduct constitutes an accomplice to the main crime such as fraud. For the latter case, the determination is more complicated, from the formal point of view, the intermediary organization personnel regularly provide notarization document services for the "routine loan" gang, and it seems legal to collect the corresponding notarization fees, but in essence, it has a relatively fixed and long-term cooperative relationship with the criminal act of "routine loan", although it does not participate in the sharing of the stolen goods, but the fact of profiting from this is difficult to deny, and it can also be considered as an accomplice to the main crime. However, in the case of criminal certificates, attention should be paid to comprehensive and comprehensive determination, and it is not possible to simply treat the notary public as an accomplice to the main crime such as fraud just because the notary often provides notarization services for the "routine loan" gang, but also needs to combine the witness testimony, the confession of the co-offender, the defendant's own defense and other evidence, from the number of participation, the source of profits, the degree of familiarity and other aspects of the analysis, to determine whether the notary is a member of the criminal gang or a crime committed alone. If the notary business mainly originates from a relatively fixed criminal gang of "routine loans", and the members of the criminal gang are familiar with each other, and still help to issue false supporting documents when it is clearly known that the victim has been deceived or coerced, it may be considered to be directly identified as an accomplice to fraud or other crimes, unless there is a reasonable defense.

Starting from the dimension of proof of performing duties and responsibilities, it is accurately defined whether the intermediary organization personnel committed intentional crimes or negligent crimes. The crime of intermediary organization personnel is essentially a violation of objective, professional, and conscientious professional duties, and can be distinguished into intentional crimes and negligent crimes due to different degrees of subjective malignancy. Whoever, knowingly knows that the entrusted matters are inconsistent with the objective facts, still provides false supporting documents for profit, shall be punished as the crime of providing false supporting documents; where he neglects to perform his duties, relax his requirements, or is irresponsible, and thus produces a major and inaccurate supporting document causing serious consequences, he shall be punished with the crime of issuing a major untruthful supporting document. Since the objective acts of the two crimes are similar, both are manifested as the issuance of supporting documents that do not conform to reality, and the key point of difference is whether the subjective intention of the intermediary organization personnel is intentional or negligent, and in practice, there is a phenomenon of insufficient precision in the application of crimes. Combined with the actual circumstances of handling the case, it is recommended to accurately prove the subjective mentality of the perpetrator from the following circumstances, so that the guilt and responsibility are consistent and the punishment is appropriate: (1) Where there is objective evidence to fully prove that the intermediary organization personnel clearly know that the materials provided are forged or altered, and still issue relevant supporting documents according to this, it should be determined that they intentionally provided false supporting documents, such as obvious traces of material falsification, and it is impossible not to distinguish with professional common sense, repeatedly providing false supporting documents for the same object, and there is no reasonable reason to explain ;(2) Where there is subjective evidence to fully prove that in the process of drafting the supporting documents, the intermediary organization personnel know the content of the dialogue and exchange between the transaction personnel on the false transaction, or the false trader or victim clearly points out that he clearly knows that the transaction is false and there is no reasonable excuse, it shall be found to have intentionally provided false supporting documents; (3) in addition to the first two circumstances, there are doubts or contradictions in the evidence in the case, and it cannot be excluded that the intermediary organization personnel inadvertently issued an untrue supporting document without their knowledge; It should be found that the documents issued are materially inaccurate.

(Author Affilications:The Second Branch of Shanghai Municipal People's Procuratorate)

【Source: Procuratorial Daily】