Characterization of the conduct of the bank card provider in the "two-card" crime

Source: *This article was published in the April 2022 issue of China Prosecutor magazine (Classic Case Edition)

Editor's note: In judicial practice, there has been a blowout of cases of helping information network criminal activities. On March 8, 2022, the Supreme People's Procuratorate released the data on the main cases handled by procuratorial organs across the country in 2021, and in terms of the number of prosecutions, 129,000 people were prosecuted for the crime of aiding information network criminal activities, ranking third. At present, there are still many controversies in the theoretical and practical circles about the understanding and application of the crime of aiding information network criminal activities, such as the legal nature and subjective constituent elements of this crime, and the distinction between this crime and the crime of complicity to the predicate crime and the crime of covering up and concealing criminal proceeds and the proceeds of criminal proceeds. In order to accurately grasp the key issues in the judicial application of this crime, this journal has specially produced a special topic for readers.

Characterization of the Behavior of Bank Card Providers in the "Two Cards" CrimeJin Yan, Liu Xun, Li Nannan, People's Procuratorate of Qinhuai District, Nanjing City, Jiangsu Province Abstract: Due to the characteristics of cybercrime such as concealment and weakening of awareness and contact, it is difficult to apply the traditional theory of joint crime to regulate the characterization of the behavior of bank card providers in the "two cards" crime, and there are also certain difficulties in how to distinguish and characterize similar helping behaviors in judicial practice. In this regard, it is necessary to comprehensively consider the different legal interests infringed by the objective acts of bank card providers, and focus on reviewing evidence that can prove the subjective knowledge of the perpetrator, and reasonably apply the empirical rules to make criminal presumptions based on objective evidence, so as to accurately determine the content and extent of the perpetrator's subjective knowledge, so as to achieve the proportionality of criminal responsibility and punishment, and ensure that the crackdown on the "two cards" crime is not in vain. Keywords: bank card provider, crime of aiding information network criminal activities, crime of covering up and concealing criminal proceeds, and the crime of proceeds of criminal proceeds

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I. Differences in the characterization of the conduct of bank card providers in the "two cards" crime

[Case 1] In January 2021, in order to obtain illegal benefits, Zhang, Shen and others clearly knew that the bank cards they handled were provided to others for use in cybercrimes, but Shen still handled the "four-piece set" of ICBC cards and other cards through Zhang and mailed them to "Shangjia" for use, and then the bank cards received more than 280,000 yuan from the victim Tang Moumou who was defrauded by telecommunications.

[Case 2] In August 2020, Wang and others conspired to collect and transfer more than 270,000 yuan of money extorted through telecommunications network "naked chat" through telecommunications networks, knowing that the relevant transferred money was from an improper source, and obtained a commission of about 3.5% according to the amount transferred.

[Case 3] From February to March 2021, Zhong used the Internet to contact Liu and others, and even though he knew that Liu and others had committed the crime of "killing fish" telecommunications fraud, he still gathered many people to provide bank card payment QR codes to help Liu and others receive and transfer the fraudulent money, and obtained about 20% commission according to the amount transferred, and collected a total of more than 240,000 yuan in telecommunications fraud as of the time of the case.

The above three cases are similar cases investigated and handled during the "card breaking" operation, in which the perpetrator provided bank cards and other accounts to help the "Shangjia" receive and transfer money from telecommunications fraud, but there are divergent opinions on the characterization of the perpetrator, mainly for the crime of aiding information network criminal activities (hereinafter referred to as the "crime of aiding trust"), the crime of covering up and concealing criminal proceeds and the proceeds of criminal proceeds (hereinafter referred to as the "crime of concealment"), and the accomplice of the predicate crime. It is still common in judicial practice for bank card providers to be punished as accomplices to the predicate crime or to be convicted independently.

2. The qualitative dilemma of bank card providers and the way to solve them

(1) Failure to appear in the case of upstream criminals such as telecommunications fraud brings difficulties to the determination of joint crimes

Due to the particularity of crimes such as telecommunications fraud, judicial organs often initiate criminal procedures based on clues such as victim reports in their jurisdictions, and capture downstream bank card providers based on evidence such as the flow of funds, most of which are difficult to directly arrest upstream criminals. Argentina and other countries have not yet been brought to the case, resulting in the lack of confession evidence of upstream criminals in most of such cases, so that downstream bank card providers have more room for defense in terms of subjective knowledge and conspiracy.

In addition, due to the characteristics of cybercrime, such as time and space, concealment, and industrialization, upstream and downstream criminals only carry out hierarchical transmission of criminal intent through network terminals, and it is often difficult for judicial organs to prove that the helper and the recipient have the intent to commit a joint crime when the communication of the perpetrator's intention is weakened or even zero. However, in trial practice, related crimes are still at the level of the traditional theory of accomplices, and the position that only joint criminal acts and common criminal intent can be recognized as joint crimes has narrowed the scope of the establishment of joint crimes, which is also the most adjudicative reason in judicial practice that the perpetrator constitutes the crime of aiding and trusting rather than being an accomplice to the predicate crime. In addition, the law independently convicts some of these acts of assistance, and the difference in the content, degree, and stage of the perpetrator's subjective knowledge often leads the judicial organs to draw different conclusions, and there is a huge difference in the sentence between crimes such as aiding and abetting, concealing, and being an accomplice to the predicate crime, and it is easier for the perpetrator to avoid the important and light when confessing under the psychology of seeking advantages and avoiding harm, making it more difficult to prove judicial accusations.

(2) Similar acts of assistance make it difficult to accurately apply the charges

The reason for the qualitative differences in the cases involving bank cards in the "card breaking" action is that, on the one hand, the relevant laws and judicial interpretations have relatively similar provisions on such criminal acts, and there is a certain degree of competition between the crimes, and on the other hand, there are certain difficulties in how to implement similar judicial interpretations into specific criminal evidence in judicial practice. For example, the 2016 Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Application of Law in the Handling of Criminal Cases such as Telecommunications Network Fraud (hereinafter referred to as the "Opinions") stipulate that a person who clearly knows that they are the proceeds of telecommunications network fraud and the proceeds thereof, and then provides others with a credit card or fund payment and settlement account that is not his or her identity certificate, and then helps others transfer, cash out, or withdraw cash, shall be investigated for criminal liability for the crime of concealment. Where the conduct described above is carried out and there is prior conspiracy, it is to be punished as a joint crime." According to article 287-2 of the Criminal Law on the crime of aiding information network criminal activities, "clearly knowing that others are using information networks to commit crimes, providing them with technical support such as Internet access, server hosting, network storage, communication transmission, or providing assistance such as advertising and promotion, payment and settlement, and the circumstances are serious, shall be sentenced to up to three years imprisonment or short-term detention and/or a fine."

In fact, both the provisions of the Criminal Law and judicial interpretations essentially agree that providing bank cards for the crime of telecommunications fraud is an act of assistance, and the act of helping is criminalized and independently convicted, precisely because the harm of the act of assistance is becoming increasingly serious and there is a need for independent evaluation. As the legislators involved in the case said, the original legislative intent of setting this crime was based on at least three considerations: first, some crimes have formed a benefit-sharing industrial chain with the help of the Internet, and each actor in the industrial chain is relatively independent; second, the act of helping has been exponentially amplified through network technology, which not only lowers the threshold and cost of cybercrime, but also has the same role as the act of helping in some cases, and even has a dominant impact on the case; and third, the act of helping online has changed the traditional "one-to-one" The criminal chain, the connection of criminal intent, and the upstream and downstream relationships are complex, and there are great obstacles to the identification of accomplices.

However, the problem raised by this is how to reasonably use legal argumentation to accurately distinguish similar acts through criminal evidence. In the author's opinion, in terms of the logic of the application of law, first of all, we should firmly grasp the positioning of the crime of aiding and trusting as a catch-all crime of the "two cards", and only consider the crime if the act cannot be applied as an accomplice to the predicate crime or other crimes such as the crime of concealment, and for the bank card provider, if there are indeed clues that the perpetrator and the upstream criminal conspired in advance, the investigating agency should be actively guided to collect the corresponding evidence, and the conduct that should have been determined as a felony cannot be downgraded as the crime of aiding and trusting. For example, in the above-mentioned case 3, although Zhong X carried out the act of helping in telecommunications fraud, and Zhong X and his defender also put forward the opinion that Zhong X should be characterized as a concealment crime, the court comprehensively reviewed the evidence in the case such as the confessions of upstream and downstream co-defendants and the WeChat chat records of both parties collected by the investigation organs, especially considering that Zhong X was watching the video of the "killing fish" fraud sent to him by the "upstream" fraudsters, and clearly knew the "upstream" After committing the crime, he still actively gathered many people to provide collection accounts, and he carried out criminal conspiracy before the fraud was completed, and obtained a high share of about 20% of the transfer amount, which far exceeded the 1%-3% share obtained by the actor according to the transfer amount in the crime of concealment in judicial practice, and it was finally determined that Zhong X constituted an accomplice to the crime of fraud rather than the crime of concealment.

(3) Distinguish between the different legal interests infringed by the act

In the "two cards" crime involving bank cards, the greater difficulty lies in how to distinguish between the crime of aiding and trusting and the crime of concealment, which is similar in criminal form, because acts such as providing bank cards and receiving or transferring money can often be classified as "providing assistance such as payment and settlement" in the crime of aiding and trusting, and can also be classified as "harboring and transferring" in the crime of concealment. In view of the criteria for distinguishing between the two crimes, it has been suggested that the provision of bank cards and other assistance acts occurred before or after the completion of the predicate fraud crime, or whether the bank cards directly or indirectly received money from the victims. In the author's opinion, there are certain deficiencies in both of them, and in judicial practice, the vast majority of bank cards provided by downstream actors occur before the completion of the upstream crime, so it is difficult to distinguish the crime by simply considering the time node. In addition, after providing the bank card, the bank card provider does not know or mind whether the bank card is used to receive or transfer money, and it is also suspected of "objective imputation" to distinguish the crime of the previous act based on the later stage of use of the bank card that the perpetrator does not know or control.

In the author's opinion, "there is no crime if there is no act", the criminal law strikes at the specific criminal acts carried out by the perpetrator rather than the simple criminal intent, and the criminal law also protects the corresponding legal interests. Although these two crimes are included in the chapter VI of the Criminal Law on crimes of obstructing the order of social management, the two are subdivided, and the crime of aiding and believing is a crime of disrupting public order, while the crime of concealment is a crime of obstructing justice. Article 28 of the Measures for the Administration of Bank Card Business stipulates that "bank cards and their accounts shall only be used by the cardholder with the approval of the issuing bank, and shall not be leased or lent". Therefore, if the perpetrator clearly knows that others are using bank cards for criminal activities, but only carries out acts such as providing bank cards, the crime of aiding and abetting trust is constituted because the perpetrator has an abstract obligation not to lease or lend a real-name bank card or other banking contracts, or social public management order. If the perpetrator not only provides bank cards, but also helps criminals transfer stolen money in order to evade or obstruct the judicial organs' crackdown on telecommunications fraud and other crimes, then the crime of concealment should be characterized as the crime of concealment because of the infringement of new legal interests due to their acts such as transferring money or withdrawing cash, and the harm to society is greater than that of aiding trust.

Therefore, in the above-mentioned case 1, Zhang and Shen only carried out the act of selling the "four-piece set" of bank cards, and they neither carried out subsequent transfers nor benefited from them, and their objective acts stopped there, so they could only be convicted of the infringement of abstract legal interests caused by their act of providing bank cards to the social and public management order. In the second case, Wang et al. not only provided the QR code for collection, but also carried out other acts such as collection and transfer in accordance with the instructions of the "Shangjia", and obtained a commission of about 3.5% according to the amount transferred. In the end, the court found that Zhang, Shen and others only constituted the crime of aiding trust, and found that Wang and others constituted the crime of concealment.

3. Key points of the review of evidence of subjective knowledge of bank card providers

(1) Strictly distinguish between the standards for determining the subjective knowledge of bank card providers in different crimes

The objective conduct of the cases investigated and handled in the "card breaking" operation is relatively similar, so the evidence of the perpetrator's subjective knowledge is particularly necessary to accurately distinguish the crimes. According to the provisions of the Criminal Law, the crime of aiding and abetting requires the perpetrator to "clearly know that others are using information networks to commit crimes", while the crime of concealment requires the perpetrator to "know that the proceeds of crime and the proceeds thereof are thereof".

As a misdemeanor case with a statutory penalty of up to 3 years imprisonment, the requirement for the perpetrator's subjective knowledge should not be higher than that for the crime of concealment, which is up to 7 years imprisonment. In judicial practice, the subjective requirements for the perpetrator of the crime of concealment have been reduced to only the perpetrator's general confession that he knew that "the money was not coming from the right source". Therefore, the subjective requirement for the bank card provider in the crime of aiding and abetting trust should be that the perpetrator clearly confesses that he knew that the bank card would be used for online illegal and criminal acts, or that the perpetrator knew it through other evidence, or that the perpetrator knew about it but neglected to take remedial measures so that the crime continued. As some scholars have argued, the constituent elements can be divided into two types, including knowing the plan or intent of committing a crime and having the intention to promote the easier realization of the criminal act ("knowingly and promoting"), and including knowing the plan or intent of committing the crime but not promoting the easy realization of the criminal act ("knowingly and non-promoting").

(2) Apply the rule of thumb to reasonably presume that the bank card provider has subjective knowledge

In judicial practice, it is more difficult to determine the subjective aspect of the perpetrator, and unless the perpetrator voluntarily and truthfully confesses to the subjective factors such as "knowledge" and "intentionality", which are the constitutive elements of the crime, it is difficult to determine and prove, especially when most of these crimes lack the confession of the co-defendant in the upstream crime, if the perpetrator refuses to confess, it further increases the difficulty for the judicial organs to include the facts in the relevant crimes. At this time, the presumption of facts, as the only means to use objective facts to prove the subjective psychological state of the perpetrator in the absence of evidence, plays an extremely crucial role in judicial practice. The Opinions stipulate various circumstances in which subjective knowledge of the perpetrator may be presumed. Therefore, the determination of the subjective knowledge of the perpetrator of the crime of aiding and trusting may be comprehensively judged in light of the level and ability of ordinary people's cognition, whether the conduct violates legal prohibitions, whether the perpetrator evades supervision and investigation, and other circumstances.

In other words, the more objective evidence that the judicial authorities collect that can confirm the abnormal behavior of the bank card provider, the easier it is to conclude that the perpetrator subjectively knew or should have known that the "Shangjia" used the bank card to commit telecommunications fraud. As a bridge connecting the basic facts and the facts to be proven, the rule of thumb can solve the dilemma of the facts to be proved according to the logical connection between the basic facts and the facts to be proven, and also reduce the difficulty of the judiciary in proving the subjective intention. For example, in the second case above, although some of the perpetrators raised the defense that they did not know that the money was the proceeds of crime, most of the court's comprehensive money transfers occurred in the early hours of the morning, and after the money was received, the perpetrators immediately deleted the transfer records in accordance with the requirements of the "Shangjia", and the words "call the police, catch you" appeared in the postscripts of some of the transfer records, and the perpetrators contacted the "Shangjia" to use secret chat software with functions such as automatic destruction, and the perpetrators obtained 3.5% of the transfer amount In the end, the relevant defense opinions were not accepted, and the perpetrator was found to have constituted the crime of concealment.

(3) The content and extent of subjective knowledge of the comprehensive bank card provider are accurately characterized

The bank card provider in the crime of aiding and abetting trust and concealing mostly has general knowledge of the predicate crime, and it only requires the perpetrator to be aware that the upstream will commit or is committing the crime, and does not require that the perpetrator be aware of the specific crime. In particular, when the perpetrator only clearly knows that he or she is helping others to commit a crime, but does not know the specific type or specific circumstances of the crime, or when the perpetrator helps multiple people to commit a crime at the same time, but does not know the specific type of crime committed by each person, it is still appropriate for the perpetrator to characterize the crime of aiding and abetting. For example, in the above case 1, Zhang and Shen confessed that they provided bank cards to the other party for "running points", and that the bank cards would be used to collect money from illegal and criminal activities such as gambling. Shen and the others clearly knew and allowed the subsequent crime of fraud to be realized, and should be punished as the crime of aiding and abetting. However, if there is evidence to prove that the perpetrator was clearly aware of the specific means of committing the predicate crime, the consequences, and other content of the crime and still actively provided assistance, and the perpetrator has a hopeful or active attitude toward the occurrence of the crime at this time, and his subjective guilt is greater, and the degree of objective participation is also deeper, the judicial organs may punish such perpetrators as accomplices to the predicate crime after comprehensively considering factors such as the actor's share of spoils and profits, the duration of the helping act, and the social harmfulness of the conduct.

In short, in cracking down on the "two cards" crime involving bank card providers, the judicial organs should not only prevent the indulging of the crackdown on complicity in the upstream crime due to the crime of aiding and abetting trust, but also prevent the tendency to treat the bank card provider as an accomplice to the upstream crime in disregard of the principles of the law and the proportionality of the crime and punishment, so as to ensure that the crackdown on the "two cards" crime is not in vain.

*This article was published in the April 2022 issue of China Prosecutor magazine (Classic Case Edition)