The provision of programs and tools to others for the purpose of destroying computer information systems shall be punished as joint crimes

　　Summary of the trial

　　Clearly knowing that others are committing acts of destroying computer information systems, selling programs or tools used to destroy computer information systems to others, and unlawfully gaining 5,000 RMB or more, or providing them to 10 or more people, shall be found to be an accomplice to the destruction of computer information systems.

　　[Facts]

　　Beginning in January 2022, defendants Shen XX, Wu XX, Li XX, and Chen XX set up and acted as agents on the Internet, purchased various types of mobile phone calls and SMS bombing software (malicious call software) from the upstream and sold them at a higher price, and the buyer would get the corresponding "card password" after purchasing the mobile phone bombing software on these platforms, and enter the target mobile phone number and "card password" on the designated website when using it, and the system would use the target mobile phone number as a parameter to request a third-party interface to register the target mobile phone number in batches on other websites. Login, so as to achieve a large number of SMS pushes and phone calls to the target mobile phone number, interfere with the function of the mobile phone information system, and cause the mobile phone to fail to operate normally. From January to June 2022, the mobile phone bombing software sold by Shen, Wu, Li, and Chen interfered with and destroyed the mobile phones of many victims in many places across the country. Selling mobile phone bombing software, Shen Moumou's illegal income was 124,752.97 yuan, Wu's illegal income was 31,408.64 yuan (all stolen goods were returned), Li's illegal income was 34,546 yuan (all stolen goods were returned), and Chen's illegal income was 7,288.53 yuan.

　　[Trial]

　　After trial, the Yicheng City People's Court of Hubei Province held that defendants Shen XX, Wu XX, and Li XX violated state regulations by interfering with the functions of computer information systems, causing the computer information systems to not operate normally, and the consequences were particularly serious, and that defendant Chen XX violated state regulations by interfering with the functions of computer information systems, causing computer information systems to not operate normally, and the consequences were serious, and that the acts of the four defendants constituted the crime of destroying computer information systems. The four defendants who provided others with programs and tools for the destruction of computer information systems shall be found to be accomplices to the crime of destroying computer information systems in accordance with article 9 of the "Supreme People's Court and Supreme People's Procuratorate Interpretation on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering the Security of Computer Information Systems" (hereinafter referred to as the "Supreme People's Court and Supreme People's Procuratorate Interpretations"), and because they played a secondary role in the joint crime, they are accomplices, and their punishment is to be commuted in accordance with law. Shen XX, Wu XX, Li XX, and Chen XX truthfully confessed the facts of their crimes after they were brought into the case, and they were given a lighter punishment in accordance with law. Chen XX voluntarily admits guilt and accepts punishment, and may be given a lenient disposition in accordance with law. Wu and Li took the initiative to return the stolen goods, and were given lighter punishments as appropriate. On the basis of Article 286, Paragraph 1, Article 25, Article 27, Article 63, Paragraph 3, and Article 64 of the Criminal Law of the People's Republic of China, and Articles 15 and 201 of the Criminal Procedure Law of the People's Republic of China, Shen XX was sentenced to three years imprisonment, Wu XX was sentenced to two years and six months imprisonment, Li XX was sentenced to two years and six months imprisonment, and Chen XX was sentenced to one year imprisonment for the crime of destroying computer information systems.

　　After the first-instance judgment was announced, defendants Shen, Wu, Li, and Chen appealed, but the procuratorate did not raise a prosecutorial counter-appeal. The Intermediate People's Court of Xiangyang City, Hubei Province, made a second-instance ruling after trial, rejecting the appeal and upholding the original judgment. The judgment in this case has taken legal effect.

　　[Commentary]

　　After the judgment in the case took effect, the Xiangyang Municipal People's Procuratorate issued a procuratorial recommendation to the Xiangyang City Intermediate People's Court, holding that Shen XX and the other four defendants were sellers of mobile phone bombing software, and that they and the saboteurs did not have the joint intent to destroy the computer information system, and that the joint crime was not constituted.

　　In the review of this case, there are the following three opinions on whether the seller of mobile phone bombing software and the saboteur constitute accomplices to the crime of destroying computer information systems:

　　The first opinion holds that Shen XX and the other four defendants were sellers of mobile phone bombing software, and they only communicated with the producers and users of the software with the intention of trading software, and had no joint intent to destroy the victim's mobile phone system, so they should not be punished as joint crimes and accessory offenders, and should be directly punished for the crime of destroying computer information systems in accordance with the first paragraph of Criminal Law article 286. This opinion is basically consistent with the procuratorial suggestion, which holds that the trial supervision procedure should be initiated.

　　According to the third paragraph of Criminal Law article 286, which stipulates that "intentionally producing or disseminating computer viruses and other destructive programs that affect the normal operation of computer systems, and the consequences are serious, punishment shall be given in accordance with the provisions of paragraph 1", the conduct of the four sellers alone constituted the crime of destroying computer information systems, and should not be punished as accomplices to the perpetrators, and the original trial court erred in punishing Shen XX and the other four defendants as accomplicesand a retrial shall be initiated to make corrections.

　　The third opinion holds that a person who clearly knows that another person has committed a criminal act of destroying a computer information system, and provides programs or tools, constitutes an accomplice. Shen XX and the other four defendants should have known that mobile phone bombing software would be used to destroy computer information systems, but still sold them to others, and the original trial judgment found that the four were accomplices in the crime of destroying computer information systems, and that they were correctly punished as accomplices based on their status and role, and that the case did not meet the requirements for a new trial.

　　The Xiangyang City Intermediate People's Court carefully examined the case in response to the issues referred to in the procuratorial recommendations and did not adopt the first two opinions. It is held that the first opinion requires that a joint crime of sabotage of computer information systems be constituted, and that the perpetrator must have a clear and clear intention to communicate, which does not meet the characteristics and requirements of information network crimes. The producers, sellers, and users of mobile phone bombing software are not to be considered joint criminals, do not distinguish between acts of committing and assisting, and do not consider the nature, circumstances, and social harm of the crime, and are all sentenced to fixed-term imprisonment of not less than five years for the crime of destroying computer information systems in accordance with the first paragraph of Criminal Law article 286, which is not in line with the principle of proportionality of criminal responsibility in the criminal law of the mainland.

　　The second opinion treats the mobile phone bombing software in this case as a destructive program such as a computer virus, which does not meet the definition of a destructive program such as a computer virus in the Judicial Interpretations of the Supreme People's Court and the Supreme People's Court. Article 5 of the "Judicial Interpretations of the Supreme People's Court and the Supreme People's Court" stipulates that in any of the following circumstances, a procedure shall be found to be a "computer virus or other destructive program" as provided for in paragraph 3 of Criminal Law article 286:(1) It is possible to copy or disseminate part or all of itself or a variant of itself through networks, storage media, files, or other media, and destroy computer system functions, data, or applications; (2) It can be automatically triggered under preset conditions and destroys computer system functions, data, or applications; (3) Other programs specifically designed to destroy computer system functions, data, or applications. Judging from the methods and principles of the destruction of mobile phone bombing software, it does not have the function of self-replication and propagation of computer virus programs and the automatic triggering of certain conditions, and is not a destructive program such as a computer virus, and the provisions of paragraph 3 of Criminal Law article 286 cannot be applied to this case.

　　After examination, the Xiangyang City Intermediate People's Court held that the third opinion not only conforms to the provisions of the Criminal Law and the "Judicial Interpretations of the Supreme People's Court and the Supreme People's Court" on joint crimes and crimes of sabotaging computer information systems, but also adapts to the specific reality of the mainland's crackdown on information network crimes. The specific reasons are as follows:

　　First, the sale of mobile phone bombing software and the sabotage of the purchaser are related to each other, and ultimately point to the same thing, which meets the requirements for the establishment of a joint crime. Article 25 of the Criminal Law stipulates that joint crime refers to the joint intentional crime committed by two or more persons. To constitute a joint crime, first, it is required that the perpetrator must be two or more persons or units that have reached the age of criminal responsibility and have the capacity for criminal responsibility; Second, there must be a common intentional criminal act, and from an objective point of view, the acts of each actor all point to the same crime, are related to each other, and cooperate with each other to form a unified criminal activity as a whole; From the subjective point of view, the psychological attitude of the co-perpetrators who are aware of the harmful consequences of their actions and want or allow such consequences to occur. Since the sole purpose of mobile phone bombing software is to disrupt the normal operation of other people's mobile phone systems, whether it is the producer, seller, or purchaser, they all know that their actions are jointly directed at the crime of destroying computer information systems and hope or allow harmful results to occur. Therefore, their transactions included a joint commission of the crime of sabotage of computer information systems. The seller does not need to know the specific object of the purchaser's intention to infringe, as long as he clearly knows the social harm caused by the use of mobile phone bombing software in the computer information system, and sells to an unspecified person, it constitutes a joint crime with the purchaser.

　　Secondly, in the absence of a separate crime for aiding and abetting in the Criminal Law, the offender shall be treated as a joint crime. In this case, the procuratorate charged Shen XX and the other four defendants with the crime of destroying computer information systems as provided for in the first paragraph of Criminal Law article 286, that is, "where state regulations are violated by deleting, modifying, adding, or interfering with the functions of computer information systems, causing computer information systems to fail to operate normally, and the consequences are serious, they are to be sentenced to up to five years imprisonment or short-term detention; where the consequences are especially serious, the sentence is to be five or more years imprisonment. Judging from the expression of the crime in this paragraph, it is obvious that it is aimed at the perpetrator, and in this case, it refers to a person who uses mobile phone bombing software to interfere with other people's mobile phones after purchase, resulting in the failure to operate normally. The four defendants, including Shen, carried out the sale of mobile phone bombing software, constituting aiding and abetting. For aiders in information network crimes, the Criminal Law clearly provides that where the crime is independently constructed, it is not to be handled as a joint crime, such as helping others to commit telecommunications fraud, before Amendment (9) to the Criminal Law is to be punished as an accomplice to the crime of fraud, and then separately for the crime of aiding information network criminal activities. However, if the law does not specifically set a crime for providing assistance in the crime of sabotaging computer information systems, it shall be punished as an accomplice to the crime of sabotage of computer information systems.

　　Third, according to Article 9, Paragraph 1, Item 1 of the Judicial Interpretations of the Supreme People's Court and the Supreme People's Court, the seller of the mobile phone bombing software in this case should be found to be an accomplice in the destruction of the computer information system. The first paragraph of article 9 of the "Supreme People's Court and Supreme People's Court Interpretations" provides that in any of the following circumstances, it shall be found to be a joint crime and punished in accordance with articles 285 and 286 of the Criminal Law: (1) providing them with programs or tools used to destroy the functions, data, or applications of computer information systems, and unlawfully gaining 5,000 RMB or more, or providing 10 or more persons; shall be found to be an accomplice to the destruction of computer information systems. It should be emphasized that joint crime in the specific information network environment has characteristics that are different from traditional joint crime. In traditional crime, a person can usually only be an accomplice to a single person or a small number of people. In cybercrime, one person is often able to become an accomplice to many people. For example, a manufacturer of programs or tools used to destroy the functions, data, or applications of a computer information system may provide programs or tools to tens of thousands or even more of those who destroy a computer information system, and become an accomplice to the act of destroying a computer information system. Therefore, accomplices in information network crimes do not require a clear and definite communication with each other. When Shen XX and the other four defendants sold mobile phone bombing software, they clearly knew that the purchaser would commit the crime of destroying computer information systems, which is "providing programs and tools" as provided for in item 1 of paragraph 1 of article 9 of the "Judicial Interpretations of the Supreme People's Court and the Supreme People's Court", and shall be found to be a joint crime.

　　Fourth, with regard to the identification of the type of helper in joint crimes, unlike traditional crimes, the role played by aiders in the online environment in joint crimes is special and complex, and it does not only play a secondary and auxiliary role, but may also play a major role. Therefore, where the perpetrator assists others in committing the crime of destroying computer information systems, it shall be found on the basis of their role in the joint crime, and may be found to be both the principal offender and the accessory. The original judgment of this case held that there was no possibility for the four defendants to add or delete instructions from the "purchasing user" to "bombard" the target's mobile phone on a designated website, and that they played a secondary or auxiliary role in the joint crime, and that it was not improper to be an accomplice.

　　In summary, the facts found in the original judgment of this case were clear, the law was correctly applied, and did not meet the requirements for a new trial as provided for in article 253 of the Criminal Procedure Law of the People's Republic of China.

　　Case No.: (2023) E 0684 Xingchu No. 61, (2023) E 06 Xingzhong No. 273, (2024) E 06 Xingjian No. 2

　　Case prepared by: Zou Lei, Li Shenqi, Intermediate People's Court of Xiangyang City, Hubei Province

Source: People's Court Daily