Analysis of several difficult issues in the application of law in the "two cards" case

Is the crime of aiding information network criminal activities a formal offense or an aiding and abetting sentencing rule?

Article 287 bis of the Criminal Code provides for the crime of aiding criminal activities on the information network, referred to as the crime of aiding and abetting. Correctly defining the nature of the crime of aiding and abetting not only provides a substantive explanation of its constituent elements, but also helps to clarify its relationship with related crimes. There are theoretically two views on whether the crime is a formal offense of aiding or a sentencing rule for aiding and abetting the offender.

One is that the crime of aiding and abetting trust is a principal offender, not an aider to the information network crime he helped, and its establishment is not premised on the fact that the principal offender of the information network crime begins to carry out an illegal act that meets the constitutive requirements. The other holds that the crime is not a principal offense of aiding and abetting, it is still an aider, and its establishment is preceded by the fact that the principal offender of an information network crime constitutes a crime, and if the principal offender does not constitute a crime, the crime is not established. This crime is a sentencing rule for aiding offenders, and the provisions of the General Provisions of the Criminal Law on mitigating, commuting, or exempting aiders from punishment are no longer applicable to it.

The author agrees with the second point of view. The qualitative analysis of the crime should not be based on the legal form, but should be substantively judged from the infringement of legal interests, the principle of accomplice subordination, and so on. A crime is an infringement of legal interests, and only when the principal offender initiates an unlawful act that meets the constitutive requirements can it bring infringement or imminent and concrete danger to the legal interests, and the principal offender's act is criminally punishable. When the principal offender has not yet begun to carry out an illegal act that meets the constitutive requirements, the principal offender has not yet committed a crime (except for the crime of punishing a preparatory offender), and the act of aiding does not constitute a crime.

Based on this, a substantive analysis of the crime of aiding and abetting trust can be conducted. The constitutive elements of this crime can be simplified to "knowing that others have committed information network crimes + providing assistance + the circumstances are serious". From the perspective of objective conduct, the helper must provide assistance to the helped, and its illegality comes from the helped, and if the helper has not committed a crime, the act of helping is not criminally punishable. From the perspective of subjective intent, where the helper and the person being helped conspire in advance, it can be affirmed that they "knowingly", and if there is no prior conspiracy, the helper may also constitute a one-sided aider because he has unilateral "knowledge", and the helper does not need to know exactly what specific criminal conduct the person being helped has committed. In other words, even if the criminal law does not add the crime of aiding and abetting, it is completely possible to properly deal with all acts of aiding. Therefore, the crime of aiding and abetting is not an independent principal offender, it is only a sentencing rule for aiding and abetting. From this, the following conclusions can be deduced:

(1) The crime of aiding and abetting is an overlapping rather than an antagonistic relationship with the previous crime.

The crime of aiding and abetting is an accomplice (aider) to an information network crime, and an accomplice to an information network crime can also be manifested as a crime of aiding and abetting, and there is an overlapping and competing relationship between the two crimes. If an act constitutes the crime of aiding and abetting, then it must also constitute an accomplice to the information network crime it helps. The focus of the distinction between the two is not the crime, but the application of the punishment, and the application of the crime should be determined by the severity of the punishment. Since the statutory sentence for this crime is only 3 years, combined with the provisions of paragraph 3 of the Criminal Law for this crime, which provides that "where the conduct in the preceding two paragraphs constitutes another crime at the same time, it shall be convicted and punished in accordance with the provisions of the heavier punishment", the determination of accomplices to the crime and the information network crime should be examined from both the perspectives of what should be and what is true. Taking the crime of telecommunications network fraud as an example, from the perspective of necessity, the helper should be given priority to be convicted and punished as an accomplice (accomplice) to the crime of fraud, and the provisions of "mitigated and mitigated punishment" for accomplices may be applied, but when the punishment for an accomplice is lighter than the crime of aiding trust, it should be convicted and punished as the crime of aiding and trusting, and the provisions of "mitigated or commuted punishment" for accomplices must no longer be applied, and this crime is actually a catch-every crime for aiding and abetting trust.

From a practical point of view, because the principal offender of the crime of fraud is deep behind the scenes or outside the country, it is difficult to apprehend it, and when the principal offender has not yet been brought into the case, it is often difficult to prove it because of the lack of corresponding evidence for the time being, and it is difficult to prove it, so it is helpless to temporarily find it as the crime of aiding and abetting, and when the evidence is sufficient, it may be re-designated as an accomplice to the crime of fraud. However, this is not due to the essential difference between the crime of aiding and abetting and the crime of fraud as an accomplice, but rather a helpless act when there is no evidence. In the order of determining the charges, there is no contradiction between the severity of the supposed perspective and the severity of the actual perspective.

(2) The establishment of the crime of aiding and abetting generally requires that the principal offender constitute a crime, and in special circumstances it may not be required that the principal offender reach the level of a crime.

Since the crime of aiding and abetting is an aider, according to the principle of accomplice subordination, its establishment usually requires that the principal offender must constitute a crime. Based on this conclusion, the connotation of "serious circumstances" in the constitutive elements of the crime can be reasonably explained. In paragraph 1 of article 12 of the "Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Illegal Use of Information Networks and Aiding Criminal Activities on Information Networks" (hereinafter referred to as the "Bangxin Interpretation"), "providing assistance to three or more targets" refers to the fact that there must be evidence to prove that the acts carried out by three or more targets have reached the level of a crime; It means that there is evidence to prove that part of the amount has reached the level of a crime, that is, if the principal offender is a telecommunications network fraud, at least 3,000 yuan in the amount must come from telecommunication network fraud.

One issue that needs to be explored is that paragraph 2 of article 12 of the "Interpretation of Helping Letters" stipulates that "where the conduct provided for in the preceding paragraph is truly impossible to verify whether the target of the assistance has reached the level of a crime due to objective constraints, but the total amount of the relevant amount reaches more than five times the standard provided for in items 2 to 4 of the preceding paragraph, or causes particularly serious consequences, the perpetrator shall be investigated for criminal responsibility for the crime of aiding information network criminal activities", in other words, when the payment and settlement amount of the assisted person reaches more than 1 million yuan, The helper can be convicted and punished for the crime of aiding and abetting. How should this be understood? Does it mean that as long as the amount is reached, the helper can be convicted and punished even if the person being helped has not committed a crime? Does it mean that the crime of aiding and abetting has an independent character and has acquired the status of an independent principal offender?

The author has a negative opinion on this. First of all, it should be made clear that "no act is no crime", and when the person being helped has not committed an illegal act of the type of conduct specified in the special provisions of the Criminal Law, he cannot be held responsible, and then the helper cannot be convicted and punished. Crimes in mainland criminal law usually refer to illegal and responsible acts that meet the constitutive elements, but they can also refer to illegal acts that meet the constitutive elements, such as the "crime" in article 269 of the Criminal Law, "committing the crime of theft, fraud, or robbery", or it can only refer to objective acts that meet the constitutive elements, such as the "crime" in Article 15, Paragraph 2 of the Criminal Law, which states that "criminal responsibility shall only be borne if the law provides for the crime of negligence". When applying paragraph 2 of Article 12 of the Interpretation of Helping Letters, the conduct carried out by the helper may be defined as an illegal act that meets the constitutive elements, but it does not require that it reach the level of a crime. Although a single act is not enough to infringe on legal interests, the act is imitated in large quantities, and after repeated implementation, it will bring harm to legal interests, and it is necessary to prohibit it. If the person being helped is required to reach the level of a crime before the helper can be convicted and punished, it is obviously not conducive to the fight against crime. Therefore, in special circumstances, it is required that there is evidence to prove that the aided person must have committed an illegal act, but it does not reach the level of a crime, the helper can be convicted and punished, which not only adheres to the principle of accomplice subordination, avoids the abuse of the crime of aiding and abetting, but also does not indulge in the crime.

(3) When there must be a causal relationship between the act of helping and the result of the aidee's infringement of legal interests, the helper constitutes the crime of aiding and abetting.

According to the principle of causal complicity, the punishment of an accomplice is based on the fact that he has infringed on legal interests through the principal offender, and the accomplice should not be punished when the principal offender has not infringed on legal interests or the result of the infringement of legal interests has nothing to do with the accomplice. Causation includes both physical causation and psychological causation, but according to the provisions of the crime of aiding and abetting, "providing Internet access for the offence of the offender······ and so on", it can be seen that the causal relationship in this crime refers to the physical causal relationship. From this conclusion, the relevant issues in the crime of aiding and abetting can be explained. Taking telecommunications fraud as an example, where the perpetrator rents or sells a credit card to him, the other person must use the card before it can be found that the perpetrator has constituted the crime of aiding and abetting trust; For the lease or sale of 5 or more credit cards and 20 or more mobile phone cards of others as mentioned in Article 9 of the "Opinion on Wire Fraud II", it is only when others use the credit card or mobile phone card to commit a crime, and it reaches the level of a crime, and it is considered "serious circumstances" in the crime of aiding and abetting trust.

Accomplice to the crime of aiding trust, fraud, and covering up and concealing criminal proceeds

Since the crime of aiding and believing is itself an accomplice, the significance of exploring the relationship between the crime of aiding and trusting and the accomplice to the crime of fraud is when the crime of aiding and believing can become an accomplice to the crime of fraud. It can be made clear that assistance before the completion of the crime of fraud may constitute an accomplice to the crime of fraud, and assistance after the completion of the crime of fraud does not constitute an accomplice to the crime of fraud, but may constitute the crime of covering up and concealing criminal proceeds.

(1) Can a person who repeatedly assists a criminal in wire fraud withdraw money constitute an accomplice to the crime of fraud?

Paragraph 3 of Article 4 of the "Opinions on Telecommunications Fraud" stipulates that a person who clearly knows that others have committed the crime of telecommunications network fraud, helps to transfer the proceeds of the crime of fraud and the proceeds thereof, and cashes out or withdraws cash, shall be punished as a joint crime. This provision includes two situations: first, when the perpetrator conspires with the principal perpetrator of telecommunications fraud in advance and promises to cash out or withdraw cash afterwards, there is no doubt that the perpetrator constitutes an accomplice to the crime of fraud because there is psychological causality between the prior conspiracy and the result of telecommunications fraud. Second, when the perpetrator did not conspire with the principal offender of telecommunications fraud beforehand, and clearly knew that it was the proceeds of telecommunications fraud and cashed out or withdrawn cash for the same target multiple times, except that the first cash-out or withdrawal constituted the crime of covering up or concealing criminal proceeds, the subsequent cash-out or withdrawal from the second time shall be established as an accomplice to the crime of fraud. Conspiracy can be both explicit and implicit. After the perpetrator helped others withdraw money for the first time, he did not refuse to continue withdrawing money for him, and the two parties reached a tacit understanding psychologically, and the actor provided psychological support for the principal perpetrator of fraud to commit the next crime, and the first withdrawal was the next prior conspiracy. However, for this kind of repeated withdrawal, the crime of covering up and concealing criminal proceeds and the crime of fraud cannot be punished concurrently, and the crime of fraud should be punished as the crime of fraud, otherwise the punishment will be excessive.

(2) When the crime of covering up and concealing criminal proceeds is established, is the application of the crime of aiding and abetting trust excluded?

Paragraph 5 of Article 3 of the Opinions on Telecommunication Fraud stipulates that if one clearly knows that the criminal proceeds of telecommunications network fraud and the proceeds thereof are carried out specific acts such as transferring, cashing out, or withdrawing cash, the crime of covering up and concealing the criminal proceeds or the proceeds of the criminal proceeds shall be convicted and punished. So, if the perpetrator rents or sells a credit card to another person without making a specific transfer, does it not constitute the crime of covering up and concealing criminal proceeds? The "Opinions on Wire Fraud" actually refers to the circumstances in which the perpetrator constitutes the principal offender of the crime of covering up and concealing criminal proceeds, but it does not exclude that the perpetrator may constitute an aider to the crime. In short, as long as the perpetrator clearly knows that it is the proceeds of telecommunications network fraud, but rents or sells the credit card to others for transfer, cash, or withdrawal, it can constitute an aider to the crime of covering up and concealing criminal proceeds, and the perpetrator is not required to be present in person, let alone to personally carry out acts such as transferring money. Of course, if the perpetrator is given a "lighter or commuted" punishment as an accomplice to the crime, and his punishment is lighter than the crime of aiding and abetting, he shall be convicted and punished as the crime of aiding and abetting. Because the crime of aiding and abetting is also a sentencing rule for aiding and abetting the crime of concealing criminal proceeds, the two crimes are overlapping rather than antagonistic.

(3) How to determine the amount of the crime of covering up and concealing criminal proceeds?

In cases where the predicate crime can basically be determined to be fraud, there are different practices in practice as to whether the amount of the crime of covering up and concealing is determined according to the amount of the crime of fraud or the amount of the transfer. Generally speaking, what criminals ask the perpetrator to transfer is basically the proceeds of crime, and there are very few legal funds, and both parties are well aware. Due to the non-contact nature of telecommunications network fraud and the wide range of targets, it is impossible for the case-handling organs to verify the amount defrauded by each victim, and the determination of the amount of the crime is based on a certain amount of evidence for judicial presumption and general determination, and counter-evidence is permitted. In this case, it is very reasonable and operational to presume that all the amount transferred is the proceeds of crime, and then to be determined as the amount of the crime of covering up and concealing the proceeds of crime. Of course, if the perpetrator has evidence to prove that there is a non-criminal amount, the amount shall be deducted.

The act of buying or selling someone else's credit card suite is characterized

In practice, most of the perpetrators buy and sell credit card kits, including credit cards, passwords, USB shields, copies of ID cards, mobile phone cards, etc., commonly known as "four-piece sets" and "eight-piece sets", and it is rare to buy and sell credit cards themselves. How this act should be characterized is highly controversial in various places.

One view is that this act constitutes the crime of buying and illegally providing credit card information. Article 3 of the "Interpretation on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Obstructing the Management of Credit Cards" stipulates that anyone who buys or illegally provides credit card information of others that is sufficient to forge a credit card that can be used for transactions, or is sufficient to enable others to conduct transactions in the name of the credit card holder, shall be convicted and punished as the crime of buying or illegally providing credit card information. Passwords, USB shields, copies of ID cards, mobile phone cards, etc., are credit card information materials, and the use of this credit card suite is sufficient to enable others to conduct transactions in the name of the credit card holder.

Another view is that the act constitutes the crime of obstructing credit card management. According to the relevant regulations of the central bank, credit card information mainly includes the main account number, card issuer identification number, personal account identification, check digit, and personal identification code (password). The electronic data is usually written into the magnetic stripe and magnetic core of the credit card by the card-issuing bank using special equipment when issuing the card, and is used as the basis for terminals such as POS machines and ATM machines to identify whether the user is legitimate. The credit card kit is only a carrier of the credit card information and is not the same as the credit card information itself. The act of buying or selling credit card kits is "illegally possessing another person's credit card" and should be evaluated as the crime of obstructing credit card management.

The author agrees with the second point of view. If the focus of the discussion is on what is credit card information, it may be difficult to determine the dispute, but if we analyze it from the perspective of the legislative intent and the criminal punishment system, the answer will become clear.

Judging from the original intent of the legislation, the crime of buying and illegally providing credit card information is aimed at cracking down on counterfeit credit cards. The relevant person in charge of the Legislative Affairs Committee of the Standing Committee of the National People's Congress explained the legislative background of the crime that at that time, the information and materials of other people's credit cards illegally obtained or provided at that time basically ended up in the criminal group used to forge credit cards, and if the perpetrator is treated as an accomplice to the counterfeiting of credit cards, it is necessary to find out the joint criminal intent between the perpetrator and the forger, but this is difficult to verify. In view of the tremendous disruptive effect of this act on the financial order, this crime was enacted in order to crack down on credit card crime at the source. The act of buying or selling a credit card kit was done voluntarily for the purpose of making a profit, and was for the purpose of trading rather than counterfeiting a credit card, and did not meet the applicable requirements for the crime of buying or illegally providing credit card information.

From the perspective of the criminal punishment system, each crime in the criminal law has its own adjustment object, and the punishment can also coordinate and coexist with each other, if the application of one crime greatly involves the adjustment scope of other crimes, it will lead to the destruction of the crime system and the unfair application of punishment, and its rationality is doubtful. According to the provisions of the judicial interpretation, the crime of buying or illegally providing credit card information involving one credit card may constitute the crime of buying or illegally providing credit card information, and if five or more credit cards are involved, the penalty shall be three or more years imprisonment; If the crime of buying or illegally providing credit card information is applied to the act of buying and selling credit card kits, it will not only lead to a significant reduction in the application of the crime of obstructing credit card management, and even have the risk of being "hollowed out", but will also lead to the punishment of the defendant being too severe and unreasonable. In addition, the applicable charges vary from place to place, and there will be differences between crimes and non-crimes, heavy punishments and light punishments in the same cases, and different sentences in the same case, which seriously undermines the fairness of the criminal law. The above-mentioned drawbacks can be better avoided by identifying the above-mentioned acts from the perspective of the crime of obstructing credit card management.

Source: Henan Procuratorate

Author: Jin Chuantao, Henan Provincial People's Procuratorate