Article 287 bis of the Criminal Law of People's Republic of China (PRC) stipulates that whoever knowingly uses information networks to commit a crime and provides technical support such as Internet access, server hosting, network storage and communication transmission, or provides assistance such as advertising, payment and settlement, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or shall 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.

Second, determine the standard of the constitutive elements of the crime of helping to believe.

According to the law, the crime of trust must meet three conditions at the same time:

First, subjectively knowing that the object being helped uses the information network to commit crimes;

Second, objectively provide specific help behavior;

Third, the circumstances are serious.

(A) how to identify the subjective "knowing"

What is "knowing"?

The author believes that the knowledge in the crime of helping to believe should be clear knowledge, that is, at the level of legal facts, the perpetrator can be presumed to know through relevant evidence. The crime of trusting is essentially to criminalize the act of trusting, which in itself is the expansion of the criminal circle of criminal law. If the possible knowledge in the confession of the behavioral group is equated with the "knowing" in the crime of helping to believe, it will be considered as possible knowing and should know, and there is a risk of expanding its application. In order to be regarded as "knowing", at least it is necessary to know that the person being helped is preparing or carrying out criminal activities, that is, the actor has a specific understanding of the person being helped preparing or carrying out criminal activities.

In the minutes of the meeting in 2022, the standard of "knowing" was raised, and it was proposed to seriously identify "knowing" according to the factual evidence of the case.

1. Emphasize the principle of consistency between subject and object to prevent one-sided dependence on the confession of the actor.

In judicial practice, criminal suspects always have the psychology of avoiding the heavy and ignoring the light, and often make confessions that they don't "know" subjectively. Based on the particularity of the crime of helping the letter, it is indeed difficult to obtain evidence. Therefore, the investigation organ can only make multiple confessions to the criminal suspect, and finally rely on the confession of the criminal to determine knowledge. It should be comprehensively identified from the cognitive ability, past experience and confession of the actor.

2. Avoid simple and objective imputation, and correct the act of selling "two certificates" as knowing.

In the past, as long as it was found that the actor sold "two cards" and the "two cards" were used for criminal acts, it was directly determined that the actor was subjectively "knowing". Inform the actor clearly when opening the card, and it is forbidden to sell, rent or lend the bank card. Although he illegally sells, rents or lends bank cards, it cannot be determined that the perpetrator knows about the criminal activities carried out by the helped object. There should be objective evidence to prove that the illegal act of selling, renting or lending bank cards cannot constitute a criminal offence.

3. Both parties to the transaction have trust foundations such as relatives and friends, and should be carefully identified as "knowing".

The behavior of two cards between relatives and friends is often a simple card borrowing behavior without interest exchange, and only strangers will have interest exchange behaviors such as selling cards and renting cards. Therefore, once the card is used for criminal activities between relatives and friends, we should be cautious in the subjective identification of the doer. After all, there are relatives and friends. However, it does not mean that as long as there is the relationship between relatives and friends mentioned in the minutes of the 2022 meeting, it is considered innocent, but there must be stricter standards. The comprehensive objective evidence of the case is enough to prove that the perpetrator is "knowing".

4. Regarding subjective cognition or not, the minutes of the 2022 meeting put forward seven criteria for judging.

(1) Inter-provincial personnel handle and buy and sell "two certificates" in batches;

(2) After renting or selling the "two cards" (mobile phone cards and credit cards), he received an oral or written notice from the public security organs, banking financial institutions, non-bank payment institutions, telecommunications service providers and other relevant units and departments, informing them that the rented or sold "two cards" were suspected of fraud, money laundering and other illegal crimes, and the actor continued to rent or sell them without taking remedial measures;

(3) The "two cards" leased or sold are frozen due to suspected fraud, money laundering and other illegal crimes, and help to unfreeze them, or cancel the old cards, apply for new cards, and continue to lease or sell them;

(4) The leased or sold online account with payment and settlement function is sealed up due to suspected fraud, money laundering and other illegal crimes, and continues to be provided to others for use after unsealing;

(5) Frequent use of covert Internet access, encrypted communication, data destruction and other means or use of false identities to evade supervision or investigation;

(6) colluding with others, designing the speech caliber in response to the investigation in advance;

(7) Being punished for illegally trading the "two certificates" or being punished by credit, admonishing, buying, selling or renting the "two certificates".

(2) What is "helping others"

Some help behaviors are mentioned in the criminal law: providing technical support such as Internet access, server hosting, network storage and communication transmission, or providing advertising promotion, payment and settlement. Although the criminal law does not directly stipulate that buying and selling bank cards, credit cards and mobile phone cards is an act of assistance, However, Article 7 of "Opinions of the Supreme People's Court on Several Issues Concerning the Application of Laws in Handling Criminal Cases such as Telecommunication Network Fraud (II)" (hereinafter referred to as "Opinions") issued by the Ministry of Public Security of the Supreme People's Procuratorate clearly states that "(1) buying and selling, renting 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 and selling or renting other people's mobile phone cards, mobile cards and Internet of Things cards.

Article 4 of the Minutes of the 2022 Meeting also puts forward a concept: "If the credit card rented or sold by the actor is used to receive fraudulent funds from the telecommunication network, but the actor fails to transfer money, withdraw cash or withdraw cash on his behalf, or fails to provide verification services such as face brushing to cooperate with others to transfer money, withdraw cash or withdraw cash, it should not be considered as a' payment settlement' act as stipulated in Item (2) of Paragraph 1 of Article 12 of the Interpretation". This concept is of great significance to distinguish the problem of "payment and settlement" in the crime of aiding letters.

(C) How to judge the degree of "serious circumstances" of helping behavior

Article 12 of the 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 of Illegal Use of Information Networks and Helping Information Network Crimes (hereinafter referred to as the Interpretation) stipulates several serious 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.

The Opinions also added Article 7 "Other serious circumstances" in the Interpretation:

(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.

After the publication of the minutes of the 2022 meeting, the first, second and fourth articles of the Interpretation were further clarified:

The minutes of the meeting of 1.2022 made it clear that "helping three or more objects" in judicial interpretation should be understood as helping three or more actors or gangs respectively, and the acts organized and implemented by the helped actors or gangs all reached the criminal level. Providing help to the same object for more than three times does not belong to "providing help to more than three objects" as stipulated in this judicial interpretation.

2. As mentioned above, the 2022 meeting minutes defined and restricted the payment and settlement behavior, that is to say, the behavior of the actor simply providing the bank card will no longer be regarded as a "payment and settlement" behavior.

3.2022 The minutes of the meeting made it clear that "illegal income" should be understood as all illegal money or illegal income obtained by the actor to help others commit information network crimes. There is no need to deduct the "cost" expenses such as card collection by the actor.

In addition, Article 5 of the Minutes of the Meeting on Further Promoting the Action of "Breaking Cards" in 2020 States that "if the credit card that is leased or sold is used to commit telecommunication network fraud, and the amount of credit card running water exceeds 300,000 ... it will be severely dealt with according to the circumstances stipulated in Article 12 of the Interpretation", and the minutes of the meeting in 2022 also put forward new standards for filing and prosecuting the crime of aiding letters of 3,000 yuan and 300,000 yuan. If the actor can explain the legal source and nature of the funds, it will be deducted. It should be noted here that 300,000 yuan and 3000 yuan are "and" and need to be met at the same time.