【Introduction】
From 2020 to 2021, Mr. Yang will provide his YY platform account to the upper home to recharge the money, buy YY coins, sell YY coins and withdraw and transfer money. In 2021, when Shangjia was suspected of fraud, Yang Moumou was criminally detained by the Jianggan District Bureau of the Hangzhou Municipal Public Security Bureau as an accomplice. The defender argued that: 1. Objectively speaking, Mr. Yang did not commit fraud, played a relatively small role in this case, and should be considered an accessory; 2. Mr. Yang did not have the urgency and necessity of arrest, and his release on guarantee pending further investigation was not socially dangerous. In the end, the Jianggan District People's Procuratorate did not approve the arrest.
【Brief Introduction of the Case】
Yang xxx registers the YY platform account, the upper family recharges in Yang xx's account, Yang xxx sells YY coins to users on the YY platform after the price increase, and the proceeds of the sale are transferred back to the upper family, and Yang xxx profits from it. In 2021, the Jianggan District Bureau filed a case for investigation for fraud, and Yang Moumou was criminally detained according to law. Mr. Yang's family entrusted lawyer Ye Bin of Zhejiang Yundao Law Firm to intervene in the application for release on guarantee pending further investigation.
【Controversy】
Does Mr. Yang constitute an accomplice to the crime of fraud?
Is Yang moumou necessary to arrest?
【Defense Opinion】
1. Yang X did not objectively carry out fraudulent acts of fabricating facts and concealing the truth, which was used less in this case and should be found to be an accessory
In this case, the YY coin transaction involved in the case was the exchange of YY coins between Shangjia and Yang Moumou. In accordance with the instructions of shangjia, Yang XX recharged the QR code of Yang XX's YY platform account to shangjia, and Shangjia paid RMB through the two-dimensional code, recharged the purchased YY coins to Yang XX's account, and Yang xxx sold the YY coins to the users of the YY platform, and the proceeds were paid to the shangjia. It can be seen that the upper family will use the conversion of YY coins into clean yuan by using the fraud proceeds in their hands. In addition, Yang Moumou added the victim's WeChat in accordance with the instructions of the upper family, collected a WeChat red envelope of 12,200 yuan, and transferred it to the upper family after withdrawing cash.
First, from the perspective of objective behavior, Yang Moumou has never had the fraud of fabricating facts and concealing the truth. It can be obtained from Yang XX's involvement in the case that Yang XX helped Shangjia transfer the proceeds of fraud by buying and selling YY coins and collecting red envelopes in accordance with the instructions of shangjia, but he did not directly carry out fraud to the victim. Second, judging from the intention of the offense in this case, Yang Moumou is not the initiator of the offense. Mr. Yang did not conspire with fraudsters to commit fraudulent acts, nor did he advise on fraudulent acts. Third, from the perspective of Yang X's position in this case, Yang X in this case obeyed the instructions of the upper family, bought and sold YY coins and collected WeChat red envelopes, and the acts he did were actually the embodiment of the family's intentions.
In summary, Yang Moumou's criminal status and role are lower than those of his superiors, and the acts he did in this case were only to help the superiors transfer the proceeds of fraud, and did not directly commit the crime of fraud. Therefore, Mr. Yang should be found to be an accessory in this case.
Second, Mr. Yang does not have the urgency and necessity of arrest, and his release on guarantee pending further investigation does not pose a social danger
First, according to Article 81 of the Criminal Procedure Law of the People's Republic of China and Article 6 of the People's Procuratorate's Review of the Quality Standards for Arrest, if a criminal suspect is suspected of a relatively minor crime and is not suspected of other major crimes, in any of the following circumstances, it may be considered that there is no need for arrest: "... (2) First-time offenders or occasional offenders with less subjective malignancy, accessories or coercive accomplices in joint crimes...". In this case, Mr. Yang's criminal role was relatively small, his criminal status was low, and he only played a secondary or auxiliary role, and should be found to be an accessory in accordance with law. Moreover, he does not have any criminal record, and is a first-time offender or an occasional offender. Yang Moumou was lured astray by the temptation of monetary interests, and subjectively did not have the purpose of illegally possessing the victim's money, which shows that his subjective malignancy is relatively small. In summary, Mr. Yang meets the conditions of "no arrest is necessary" and can change the compulsory measure to release on guarantee pending further investigation. Second, after Mr. Yang was arrested, he was able to truthfully confess to the case-handling organs about the circumstances involved in the case, actively admit guilt and repentance, and there was no social danger to his release on guarantee pending further investigation. Third, Yang Moumou did not have the intention of illegally possessing the victim's fraud losses, but only obtained a certain amount of remuneration by helping the upper family transfer the proceeds of fraud, and its subjective malignancy was small and the social danger was low. Fourth, Yang Moumou's family has returned 12,200 yuan of stolen goods on behalf of the victim, and returned it to the victim, actively making up for the victim's losses and resolving social contradictions. Fifth, Mr. Yang has a fixed residence, and his release on guarantee pending further investigation will not have any adverse impact on the community in which he lives. Moreover, Mr. Yang clearly stated at the meeting that if he could be released on guarantee pending further investigation, he was willing to pay the security deposit in full, and ensured that he could promptly appear at the case for interrogation when the case-handling organ summoned him.
【Processing result】
Finally, during the procuratorate's review and approval of arrest, the defense lawyer's opinion was adopted, and Yang was successfully released on guarantee pending further investigation after 37 days of detention.
