Mr. He Tianyun: Defense lawyer of economic crime cases, core lawyer of Guangqiang Law Firm's Economic Crime Defense and Research Center
The Criminal Law Amendment (IX) adds the crime of assisting in information network criminal activities, which specifically regulates the perpetrator's assistance in providing network technical support, advertising promotion, and payment and settlement when he knows that others are using the information network to commit crimes.
In practice, the act of providing the above-mentioned assistance in the knowledge of another person's crime, even if it is not separately determined as the crime of helping the letter, constitutes another type of crime, and in practice, the perpetrator is generally convicted of being an accessory to the crime of others, which is generally heavier than the sentence for the crime of helping the letter. According to the existing criminal law, if the perpetrator constitutes the crime of assistance, he may be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined or fined individually.
From the point of view of the penalty provided for in this crime, the maximum sentence is less than three years, indicating that this criminal act is a relatively minor crime in the eyes of the legislator, so in the process of defense, the defense lawyer strives for the application of probation for the perpetrator to become an important idea.
The condition for the application of a suspended sentence is to stipulate that article 72 of China's Criminal Law is aimed at criminals sentenced to short-term detention and fixed-term imprisonment of less than three years, and at the same time, the circumstances of the crime are minor, there is repentance, there is no danger of re-offending, and the declaration that the suspended sentence has no major adverse impact on the community in which they live. Among them, suspended sentences shall be applied to persons under the age of eighteen, pregnant women and persons who have reached the age of seventy-five.
After carefully comparing the term of imprisonment and the conditions for the application of probation for the crime of aiding the letter, we found that the crime of helping the letter has a natural application of the probationary conditions, "fixed-term imprisonment of not more than three years". In judicial practice, what rules will be followed when the court tries a case of helping letters to apply a suspended sentence, and the author summarizes and sorts out some cases.
1. The parties have voluntarily surrendered, are willing to admit guilt and accept punishment, and have handed over all the illegal gains;
The "Criminal Judgment" [(2020) Zhejiang 1102 Xingchu No. 463] issued by the Liandu District People's Court of Lishui City, the trial found that between May and August 2019, defendant Cai Mouwen, knowing that the purpose of Zhang X's (handled in a separate case) to acquire bank cards was to help others use the information network to carry out criminal activities, handled a total of seven sets of bank cards (including U shields, mobile phone cards, and copies of his ID card) in three times, and sold them to Zhang at a price of RMB 500 or RMB800 per set of bank cards. The profit from this is RMB 2380. After investigation, defendant Cai Zhangwen's four bank cards, namely the CITIC Bank Card, the Construction Bank Card, the Agricultural Bank Card, and the Rural Commercial Bank Card, were used by others for telecommunications network fraud to help pay and settle the funds.
The court held that defendant Cai Mouwen voluntarily surrendered after committing a crime and truthfully confessed his crime, which was a voluntary surrender and a lenient punishment in accordance with law. Defendant Cai Zhangwen admitted the facts of the alleged crime, was willing to accept punishment, and was given a lenient treatment in accordance with law. After the incident, defendant Cai Zhangwen has handed over all the illegal gains and will be given a lighter punishment as appropriate.
The court ruled: Defendant Cai Zhangwen was convicted of assisting in information network criminal activities and sentenced to eight months' imprisonment, suspended for one year and four months, and fined RMB 3,000 (the probation period of probation is calculated from the date of determination of the judgment. The fine shall be paid to this Court within three days after the entry into force of this judgment).
2. The parties have voluntarily surrendered, have a good attitude of admitting guilt, and can return losses, and are found to have shown remorse;
The Xinchang County People's Court issued the Criminal Judgment [(2020) Zhejiang 0624 Xingchu No. 294] Trial ascertained: In September 2019, defendant Xu Zong was instructed by Xu X (who had been convicted) to find defendants Xu Rongwei and Zhu X (handled in a separate case) to handle bank cards and supporting business licenses, and sent the 2 bank cards to Xu somewhere in Nan umbrella Town, Kang County, Lincang City, Yunnan Province, and Xu delivered 2 bank cards to "Red Sister". By the time of the case, Xu Rongwei's Agricultural Bank Card of China had a turnover of more than RMB 24.44 million, and Zhu's Agricultural Bank card of Zhu was more than RMB2.16 million. Xu made a total profit of RMB 190 and Xu Rongwei made a profit of RMB 260.
The court held that if the defendants Xu Zong and Xu Rongwei were able to voluntarily surrender after committing a crime and truthfully confess their crimes, they surrendered voluntarily; they could voluntarily admit the facts of the alleged crime and were willing to accept punishment, and they could be dealt with leniently in accordance with law. Defendants Xu X and Xu X have a good attitude in admitting guilt, can return losses, have indeed shown remorse, are not in danger of re-offending, and declare that the suspended sentence has no major adverse impact on the community in which they live, and the suspended sentence may be applied.
The court ruled: Defendant Xu X was sentenced to one year's imprisonment, suspended for one year and six months, and fined RMB 5,000 (the probation period for probation is calculated from the date of determination of the judgment. The penalty is limited to payment after the judgment takes effect).
3. The parties truthfully confess, actively return the stolen goods, voluntarily admit guilt and accept punishment, and have the circumstances of the first offense;
The Yiwu Municipal People's Court issued a "Criminal Judgment" [(2020) Zhejiang 0782 Xingchu No. 1559] The trial ascertained: Around April 2020, defendant Ding X, under the contact of Jiang X (handled in a separate case), went to the Industrial and Commercial Bank of ×× Village Road, ×× Street, Yiwu City to apply for a bank card (card number 6215××××2121) and a Unicom telephone card. Defendant Ding Yi sold the bank card and telephone card to Jiang Le for RMB 500 when he knew that the bank card and telephone card might be used for illegal crimes.
From May 6 to 11, 2020, the victim Dang X was defrauded of RMB305,000 by telecommunications, and from May 11 to 13 of the same year, the victim Zhou X was defrauded of RMB332,200 by telecommunications. A total of RMB 329218 of the above-mentioned stolen funds flowed into defendant Ding Yi's (card number 6215××××2121) Industrial and Commercial Bank Card.
The court held that: After defendant Ding Mou arrived at the case, he truthfully confessed his crime, actively returned the stolen goods, voluntarily admitted guilt and accepted punishment, and could be given a lenient punishment in accordance with law. The defender's defense opinion that defendant Ding Yi was a first-time offender, truthfully confessed, had withdrawn the stolen funds, admitted guilt and accepted punishment, and requested a lighter punishment was adopted.
The court ruled: Defendant Ding X was convicted of assisting in information network criminal activities and sentenced to six months' imprisonment, suspended for one year, and fined RMB 3,000 (the probation period of probation is calculated from the date of determination of the judgment.) The fine is limited to payment within one month after the judgment takes effect).
4. The parties truthfully confess after being brought to justice, are willing to accept punishment, and withdraw illegal gains;
The Pingle County People's Court made a "Criminal Judgment" [(2019) Gui 0330 Xingchu No. 187] The trial ascertained: In March 2019, Huang Mou (handled in a separate case) contacted defendant Yang Fangyi to apply for a bank card in his real name on the grounds of paying 300 yuan per day. At the same time, Huang Mou (handled in a separate case) asked defendant Yang Fangyi to bind Alipay to the bank card by brushing his face, so that he could operate illegal transfers online. According to the data of the telecommunications fraud investigation platform of the Ministry of Public Security, the defendant Yang Fangyi transferred a total of 557,600 yuan in bank cards, and he received a remuneration of 900 yuan.
The court held that: After the defendant Yang Fangyi was arrested, he voluntarily and truthfully confessed his crime, admitted the facts of the alleged crime, and was willing to accept punishment, and could be given a lenient punishment or lenient treatment in accordance with law. Defendant Yang Fangyi withdrew rmb900 from illegal gains and may be given a lighter punishment as appropriate. The Pingle County Bureau of Justice issued an investigation and evaluation opinion holding that the defendant Yang Fangyi had performed well in the village, and his family and village committee had expressed their willingness to cooperate with the judicial organs to jointly supervise and educate the defendant. Based on the above sentencing circumstances and the assessment opinions of the Pingle County Bureau of Justice, this court decided to announce a suspended sentence to defendant Yang Fangyi.
The court ruled: Defendant Yang Fangyi was convicted of assisting in information network criminal activities and sentenced to seven months' imprisonment, suspended for one year, and fined 2,000 yuan (paid).
5. The parties have confessed the circumstances, voluntarily admitted guilt and accepted punishment, and have withdrawn all illegal gains;
The Pan'an County People's Court rendered the "Criminal Judgment" [(2020) Zhejiang 0727 Xingchu No. 160] The trial ascertained: On July 13, 2020, defendant Li Mouhan, knowing that others had purchased bank cards for the use of online illegal and criminal transfers, still handled the Industrial and Commercial Bank of China and agricultural bank cards and provided them to others, and profited from them by RMB 2,000 (the same below). From July 13, 2020 to August 13, 2020, The transaction flow in the industrial and commercial bank card with the card number of Li Mouhan was 6222×××× 8967 reached more than 300,000 yuan.
The court held that: Defendant Li Mouhan confessed and voluntarily admitted guilt and accepted punishment, had withdrawn all illegal gains and compensated the victims for some of their losses, and could be given a lighter punishment. The sentencing recommendation of the prosecuting organ is appropriate and is adopted by this court.
The court ruled: Defendant Li Mouhan was convicted of assisting in information network criminal activities and sentenced to one year's imprisonment, suspended for one year, and fined 15,000 yuan (the probation period of probation is calculated from the date of determination of the judgment. The fine is limited to payment within one month after the judgment takes effect).
By combing through the above cases, we can summarize the main points of the court's judgment on the application of probation: the parties have the circumstances of voluntary surrender, or the facts of the crime they have truthfully confessed, that is, the confession of the facts of the crime, as well as admitting guilt and accepting punishment, and actively returning stolen goods and returning compensation.
In handling such cases, defense lawyers shall actively obtain the above favorable circumstances for the parties on the basis of the facts of the case and the corresponding evidence, so that in the course of the defense, they can strive for the application of a suspended sentence for the parties.
The above content is a summary of the "main points of the probation judgment on the application of probation for the crime of helping letters" by He Tianyun, a core lawyer of the Economic Crime Defense and Research Center of Guangqiang Law Firm.
