On June 22nd, 2002/KLOC-0, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security issued Opinions on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Telecommunication Network Fraud (II) (hereinafter referred to as Opinions II).
Article 9 of Opinion 2 stipulates that buying, selling or renting credit cards, bank accounts, other people's mobile phone cards and mobile cards for others to use information networks to commit crimes can be regarded as "helping" as stipulated in Article 287 bis of the Criminal Law. Opinion 2 also stipulates that the perpetrator knows that it is another person's credit card, bank account, non-bank payment account and other payment and settlement AIDS, and buys, sells or rents more than five pieces for his own crime, or buys or rents other people's mobile phone cards, mobile cards and other communication tools, and the number reaches more than 20 pieces to help investigate the criminal responsibility of information network crimes.
At the press conference of Opinion No.2, Mr. Li, Vice President of the Third Criminal Court of the Supreme People's Court, introduced that Article 9 of Opinion No.2 solved the problem that the illegal sale of "two certificates" constituted a crime of "serious circumstances" in helping information network criminal activities.
As can be seen from the above, there are two conviction standards for the crime of "two certificates":
(1) The payment and settlement amount is more than 200,000 yuan;
(2) Buying, selling or renting five or more credit cards, bank accounts, non-bank payment accounts, Internet account passwords with payment and settlement functions, online payment interfaces and online banking digital certificates; Buying, selling or renting more than 20 mobile phone cards, mobile cards and Internet of Things cards of others.
First, how should the above two standards be applied in practice?
Before the publication of Opinion 2, almost all the crimes of "two certificates" adopted the first conviction standard. After the promulgation of Opinion 2, it is obvious that the case-handling organ will continue to use the previous first conviction standard, but the case-handling organ has more choices, that is, the second conviction standard.
Therefore, the author believes that the two conviction criteria are applicable at the same time. The relationship between the two is "or", that is, meeting one of the conditions constitutes the crime of helping the letter.
Second, the theoretical discussion of two incriminating standards.
The author believes that the most fundamental feature of the two conviction standards is that the legal basis for conviction is different:
The "Interpretation" takes the bank card payment settlement amount of 200,000 yuan as the standard, which is actually based on the social harm of criminal acts. Opinion 2 holds that the act of selling cards itself-that is, selling more than 5 bank cards or more than 20 mobile phone cards-is regarded as the conviction standard according to the nature of objective behavior. Of these two criteria, the author prefers the second one for the following reasons:
1, the second incrimination standard is fairer.
If the amount of payment and settlement is taken as the incrimination standard, then the criminal suspect's behavior of selling bank cards and endangering social management order will only lead to great differences in sentencing results because of the different bank cards recorded after selling the cards, which violates the principle of suiting punishment to crime in criminal law theory. It is an objective and fair legislative choice to take the number of buying and selling bank cards or mobile phone cards as the standard of conviction and sentencing.
2. The imputation of objective behavior is more conducive to standardizing criminal behavior.
When the bank card is sold to others, the related transactions of the bank card are no longer under the control of the operator, and it is unforgivable to pay the settlement amount of 200,000 yuan as the incriminating standard. Only by taking the behavior of buying and selling cards as the criterion of conviction can we better judge the criminal illegality and social harm of criminal acts.
For example, Party A, Party B and Party C sell a bank card to Party D at the same time, in which Party D uses the bank cards of Party A, Party B and Party C to run away 6,543,800 yuan, 300,000 yuan and 6,543,800 yuan respectively. Party A, Party B and Party C also sell a bank card, but Party A's behavior does not constitute a crime, while Party B's behavior is light and Party C's behavior is heavy.
3. It helps to better clarify the criminal aiding behavior itself.
The essence of the crime of aiding trust is the act of aiding behavior, which is different from directly using one's own bank card to help criminal behavior. The crime of aiding trust is aimed at the behavior of others providing bank cards to help criminal acts in the process of helping criminal acts, which is of low severity. It is in line with the criminal law theory to choose objective acts as the criteria for criminalization.
Conclusion The optimization and adjustment of the incrimination standard of the crime of aiding credit is an important measure in line with judicial practice, and it is also the product of comprehensive judgment on the objective behavior and subjective understanding of the actors in the crime of aiding credit information network by using the "two certificates". How to flexibly apply the incrimination standard in practice also provides a certain space for defense lawyers to choose arguments.
Attachment: Guide to Relevant Laws and Regulations
penal provision
Article 287 bis The crime of helping information network criminal activities is knowingly provided to others with technical support such as Internet access, server hosting, network storage and communication transmission. Commit crimes for them, or provide assistance in advertising promotion, payment and settlement. If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or only be fined.
If a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the provisions of the first paragraph.
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.
Conviction standard
Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases such as Illegal Use of Information Network and Helping Information Network Crimes.
Article 12 Whoever knowingly uses information networks to commit crimes and provides assistance for them to commit crimes shall be deemed as "serious" as stipulated in the first paragraph of Article 287 bis of the Criminal Law under any of the following circumstances.
(a) to provide help to more than three objects;
(two) the payment and settlement amount is more than two hundred thousand yuan;
(three) the use of advertising to provide funds of more than fifty thousand yuan;
(four) the illegal income of more than ten thousand yuan;
(5) Having received administrative punishment for illegally using information network, helping information network criminal activities, endangering the security of computer information system, and helping information network criminal activities within two years;
(six) the crime committed by the object of assistance has caused serious consequences;
(7) Other serious circumstances.
Due to the limitation of objective conditions, it is really impossible to verify whether the assisted object has reached the level of crime, but the relevant amount has reached more than five times the standard specified in items 2 to 4 of the preceding paragraph, or it has caused particularly serious consequences, so as to help the perpetrator to be investigated for criminal responsibility for the crime of information network crime.
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 Criminal Cases of Telecommunication Network Fraud (II).
Nine, knowing that others use the information network to commit crimes and provide one of the following help for their crimes, can be identified as "other serious circumstances" as stipulated in Item (7) of Article 12 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Illegal Use of Information Network and Helping Information Network Crimes:
(1) Buying, selling or renting five or more credit cards, bank accounts, non-bank payment accounts, Internet account passwords with payment and settlement functions, online payment interfaces and online banking digital certificates;
(2) buying, selling or renting more than 20 mobile phone cards, mobile cards and Internet of Things cards.