"Concealing and concealing the crime" comes from the Criminal Law Amendment (VI) passed and promulgated by the National People's Congress Standing Committee (NPCSC) on June 29th, 2006. The amendment amended Article 312 of the Criminal Law to read: "Whoever knowingly conceals, transfers, purchases, sells on behalf of others or conceals or disguises by other means shall be sentenced to fixed-term imprisonment of not more than three years ...". Furthermore, in the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Theft, Robbery, Fraud and Robbery of Motor Vehicles (hereinafter referred to as the Interpretation) issued by the National People's Congress in May 2007 1 1, it was further clarified that "concealing and concealing the offense of crime".
"The crime of helping information network criminal activities" comes from the Criminal Law Amendment (IX) passed and promulgated by the National People's Congress Standing Committee (NPCSC) on August 29th, 20th15th. The Criminal Law Amendment (IX) added the crime of helping information network criminal activities, and provided technical support such as Internet access, server hosting, network storage and communication transmission. , or provide advertising promotion.
So how do these two seemingly unrelated charges cross? The main intersection lies in the behavior of providing fund accounts and payment and settlement. On May 15, 1 1, the Supreme People's Court promulgated Article 10 of the Interpretation on Several Issues Concerning the Application of Laws in the Trial of Criminal Cases of Concealing, Concealing and Obtaining Criminal Proceeds, and adopted methods other than concealing, transferring, purchasing and selling on behalf of others, knowing that they are criminal proceeds and the proceeds generated by them, buying, selling, receiving, holding and using them through intermediaries. In recent years, Internet-related crimes have emerged continuously. Different from traditional crimes, Internet crimes have the characteristics of strong technology, complex forms and rapid escalation, and the crime of helping information network criminal activities came into being.
20 16 12 19 "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 laws in handling telecommunication network fraud and other criminal cases" stipulates that if the income from telecommunication network fraud and the income generated by it are transferred, cashed out or cashed out in one of the following ways, the first paragraph of Article 312 of the Criminal Law shall be used to cover up and conceal the criminal income. The third paragraph refers to the repeated use or fraudulent use of multiple credit cards and funds opened with non-identity certificates to pay settlement accounts, or the repeated use of abnormal means such as covering cameras and disguising to help others transfer money, cash or withdraw cash.
After the above judicial interpretation and legal provisions, the crime of shielding and helping information network criminal activities has also produced more overlap and concurrence in combating the provision of bank card accounts and fund settlement, which has brought some confusion and controversy to the application of judicial practice.
02 differences and applications
After studying relevant cases and combining with my own case, I summarized the following views on the difference and application of the crime of concealing, concealing what I have offended and helping information network criminal activities for your reference.
(1) Concealing or concealing a crime will inevitably happen after the completion of the upstream crime. Helping information network crimes usually occurs during the implementation of upstream crimes and also exists after the completion of upstream crimes.
Covering up and concealing a crime is aimed at the proceeds of crime and its benefits, so it must happen after the completion of the upstream crime; The crime of helping information network criminal activities is an act of providing technical support such as Internet access, server hosting, network storage and communication transmission. Used for committing crimes, or providing assistance in advertising promotion, payment and settlement. Therefore, it is impossible to distinguish whether it happened in the process of upstream crime or after it was completed. From a practical point of view, it usually occurs in the process of upstream crimes and also exists after the completion of upstream crimes.
Some people think that if the act of helping liquidation occurs in the process of upstream crimes and contributes to the completion of upstream crimes, it is defined as the crime of helping information network criminal activities; If the act occurs after the completion of the upstream crime, it is a transfer of criminal proceeds, which is characterized as covering up and concealing the crime. I don't agree with this view.
First of all, from the description of the crime of helping information network criminal activities, it is impossible to distinguish whether it is aimed at the upstream criminal process or after completion; Secondly, providing assistance in payment and settlement after the completion of upstream crimes is also in line with the crime of helping information network criminal activities. For example, upstream criminals use multiple bank cards to transfer criminal proceeds. The person who provides the bank card only knows that the bank card is used for illegal activities, and does not know that it is used to transfer stolen money. Concealing and concealing the proceeds of crime has gone beyond the criminal intent of the bank card provider. Therefore, it is appropriate to punish it qualitatively for the crime of helping information network criminal activities.
(2) The crime of helping information network activities is usually limited to the general understanding of upstream crimes. Concealing and concealing criminal facts includes both general knowledge and knowledge of upstream crimes.
The crime of helping information network activities and the crime of concealing and concealing all require "knowing", but the two crimes require different degrees of "knowing". The crime of helping information network activities is usually limited to the general understanding of upstream crimes, that is, knowing that the upstream behavior is likely to be a criminal act or a criminal act, but not knowing the specific implementation and behavior of the upstream crime. If you clearly know what specific criminal acts have been committed by the upstream crime and still provide assistance for payment and settlement, the helper of the upstream crime will usually be convicted and punished. However, there is no requirement for the degree of "knowing" of the upstream crime caused by concealing or concealing the crime, because the upstream crime has been accomplished, as long as there is no prior collusion, no matter what the degree of knowing, it will not be evaluated as an accomplice of the upstream crime. Therefore, the "knowledge" of upstream crimes can be both general knowledge and clear knowledge.
(3) Whether the actual operation of bank card transfer and the separate provision of bank cards are not the essential difference between the crime of concealing and helping information network criminal activities.
In practice, some people think that the actual operation of bank card transfer is to cover up and conceal the conviction and punishment of crimes, and only provide bank cards without actual operation of bank card transfer to help the conviction and punishment of information network crimes. This view is undoubtedly that whether the actual operation of bank card transfer and only providing bank cards are the fundamental differences between the two crimes.
I don't agree with this view. Providing payment and settlement assistance is not a concrete act that is obviously helpful. Providing bank cards and operating bank card transfers are both helpful behaviors, which can be considered as providing payment and settlement assistance. If bank card transfer assistance occurs in the process of upstream crimes, no criminal proceeds are generated, or it is used to transfer illegal money beyond the scope of "knowing", it is not appropriate to cover up or conceal the crime, which will help to evaluate the crime of information network crime more truly. The difficulty in practice lies in the identification of criminal proceeds and the distinction between upstream and downstream crimes. Referring to the relevant court cases, on the issue of operating bank card transfer and providing only bank cards, both cases have the situation of helping the information network crime to be sentenced.
(4) Concealing, concealing crimes and helping information network criminal activities, under certain circumstances, there are competing situations, which constitute imaginary competing crimes.
In my opinion, the reason why these two charges are controversial in practice is that the crimes of covering up, concealing crimes and helping information network criminal activities overlap under certain circumstances, and a criminal act will violate these two charges at the same time, which constitutes an imaginative joinder crime. The crime of helping information network criminal activities is to evaluate the criminal behavior from the way and performance, while concealing and concealing the crime is based on the criminal form, and the upstream crime can only constitute this crime if it has been completed. The description and evaluation of the two charges are different. However, the behaviors in bank card transfer and fund settlement are very similar, which will inevitably lead to some behavior that meets both charges at the same time.
Some people think that the two crimes are related to the concurrence of laws and regulations, but I disagree. From the perspective of laws and regulations, Article 7 of the Interpretation on Several Issues Concerning the Application of Laws in the Trial of Criminal Cases of Concealing or Concealing Offences "Whoever knowingly conceals or conceals the offenses and their proceeds constitutes a crime as stipulated in Article 312 of the Criminal Law, and at the same time constitutes other crimes, shall be convicted and punished in accordance with the provisions of heavier punishment." The third paragraph of Article 287 bis of the Criminal Law refers to the crime of helping information network criminal activities. Whoever commits the acts mentioned in the preceding two paragraphs and constitutes other crimes at the same time shall be convicted and punished in accordance with the provisions of heavier punishment. The law stipulates that "whoever constitutes other crimes shall be convicted and punished in accordance with the provisions of heavier punishment", and the principle of punishment for the two crimes is heavier punishment, so the two crimes are not in a legal relationship of concurrence. It can be seen that the two crimes will compete under certain circumstances, which constitutes an imaginary joinder and should be punished as a felony.
03 effective defense
As a defense lawyer, facing the interweaving of two crimes, how to fight for innocence or light sentence for the parties and effectively defend?
The maximum sentence for the crime of helping information network criminal activities is three years, while the amount of crimes committed by concealing or concealing can reach three years with a maximum sentence of seven years. In practice, the actor's bank card is usually very large. However, when the public prosecution agency charges the crime of covering up, concealing crimes and helping information network criminal activities, it is often in an uncertain state, and there will be many cases of changing the charges.
Therefore, it is an important step to change the charges at the stage of examination and prosecution. It will be a great success if the procuratorate can adopt the opinions of defenders and change the crime of fraud and concealing criminal facts into the crime of helping information network criminal activities. If the charges cannot be changed, the defender should also fully express his defense opinions at the trial stage, focusing on effective defense from the applicable fields and behavioral means. I have handled many cases and defended them effectively. In the end, the people's court held that the crime was improper and changed it to the crime of helping information network criminal activities, which won a lighter result for the parties.