The author learned from the online search of judicial documents that after the above-mentioned judicial interpretation came into effect on November 1, 2019, the main applicable standard for the crime of trust in the "two card categories" is Article 12 of the "Interpretation" The second provision of paragraph one is "the payment settlement amount is more than 200,000 yuan."
On June 22, 2021, the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security issued the "Opinions on Several Issues Concerning the Application of Laws in the Handling of Telecommunications Network Fraud and Other Criminal Cases (II)" (hereinafter referred to as "Opinions II") ) was officially announced.
Article 9 of "Opinion 2" stipulates that purchasing, selling, leasing credit cards, bank accounts, other people's mobile phone cards, data cards, etc. for others to use information networks to commit crimes may be deemed to be the 200th offense of the Criminal Law. "Help" behavior specified in Article 87-2. "Opinion 2" also stipulates that the perpetrator knowingly knows that others are using information networks to commit crimes, and purchases, sells, leases credit cards, bank accounts, non-bank payment accounts and other payment and settlement assistance for the purpose of committing crimes, and the number reaches more than 5 (pieces), or Purchasing, selling, and renting other people's mobile phone cards, traffic cards and other communication tools to help, with the number reaching more than 20, in order to investigate criminal liability for the crime of assisting information network criminal activities.
In the press conference of "Opinion 2", Mr. Li Ruiyi, deputy director of the Third Criminal Division of the Supreme People's Court, introduced that Article 9 of "Opinion 2" solves the problem of illegal transactions of "two cards" constituting assistance. The problem of determining the “serious circumstances” of the crime of information network criminal activities.
It can be seen from the above that there are two criteria for the crime of "two card type" fraud:
(1) The amount of payment and settlement exceeds 200,000 yuan;
(2) Acquisition, sale, or leasing of more than 5 credit cards, bank accounts, non-bank payment accounts, Internet account passwords with payment and settlement functions, online payment interfaces, and online banking digital certificates; acquisition, sale, Leasing more than 20 mobile phone cards, data cards, and Internet of Things cards to others
1. How should the above two standards be applied in practice?
Before the promulgation of the "Opinions 2", almost all "two-card" crimes adopted the first criminalization standard. After the promulgation of the "Opinion 2", the case-handling agencies will obviously continue to follow the first standard of criminalization, but they have more choices, that is, the second standard of criminalization.
Therefore, the author believes that the two standards of criminalization are applicable at the same time. The relationship between the two is an "or" relationship, that is, meeting one of the conditions constitutes the crime of trust.
2. Theoretical exploration of the two standards of criminalization
The author believes that the most fundamental feature of the two standards of criminalization is that the legal basis for conviction is different:
The "Interpretation" uses the bank card payment settlement amount of 200,000 yuan as the standard, which is actually based on the social harm of the crime as the standard for criminalization; while the "Opinion 2" uses the act of selling cards itself - that is, selling 5 cards The above bank card or more than 20 mobile phone cards are used as the criterion, which is based on the nature of the objective behavior as the criterion for criminalization. Among the two, the author prefers the second criterion for criminalization. The reasons are:
1 , the second criminal standard is more fair
If the payment settlement amount is used as the criminal standard, then the criminal suspect's behavior of selling a bank card and endangering social management order will be judged just because of the sale. The difference in bank card transactions generated after the card is entered into the account leads to huge differences in sentencing results. This is a violation of the principle of commensurate crime and punishment in criminal law theory. It is objective and fair to use the number of bank cards or mobile phone cards purchased and sold as the standard for conviction and sentencing. Legislative options.
2. Objective behavioral imputation is more conducive to regulating criminal behavior
When a bank card is sold to others, the related transactions of the bank card are no longer under the control of the perpetrator. Taking the payment settlement amount of 200,000 yuan as the standard for criminal offense is an unpunishable ex post facto act. Only by using the act of buying and selling cards itself as the standard for criminal offense can we better judge the criminal illegality and social harm of the crime.
For example, A, B, and C sold a bank card to Ding at the same time. Ding used A, B, and C's bank card to withdraw 100,000 yuan, 300,000 yuan, and 1 million yuan respectively. A, B, and C sell the same bank card, but A's behavior does not constitute a crime, B's behavior is a minor crime, and C's behavior is a serious crime.
3. Helps to better clarify the crime of helping behavior itself
The essence of the crime of helping is the helping behavior, which is different from directly using one's own bank card to commit a crime. The crime of providing assistance is to provide bank cards to others in the process of helping others commit crimes. The degree of evil in itself is relatively low. Therefore, choosing objective behavior as the standard for criminalization is consistent with criminal law theory.
Conclusion: The optimization and adjustment of the criminalization standards for the crime of aid and trust is an important measure to comply with judicial practice. It is also a comprehensive review of the perpetrator's use of the "two cards" in the crime of aiding information network criminal activities, objective behavior and subjective knowledge. The product of judgment, how to flexibly apply the guilt standard in practice also provides a certain space for defense lawyers to choose arguments.
Attachment: Guidelines on relevant legal provisions
Criminal Law Provisions
Article 287-2: The crime of aiding information network criminal activities, knowingly knowing that others are using information networks to commit them If a person commits a crime by providing Internet access, server hosting, network storage, communication transmission and other technical support for his crime, or providing advertising promotion, payment and settlement and other assistance, if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall be concurrently or solely punished. gold.
If a unit commits the crime in the preceding paragraph, the unit shall be fined, and the person directly in charge and other directly responsible personnel shall be punished in accordance with the provisions of the first paragraph.
If the acts in the preceding two paragraphs also constitute other crimes, they shall be convicted and punished in accordance with the provisions of heavier penalties.
Standards for criminalization
"Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Criminal Cases such as Illegal Use of Information Networks and Assistance in Information Network Criminal Activities"
Article 12 Anyone who knowingly knows that others are using information networks to commit crimes, and provides assistance to others to commit crimes, and falls under any of the following circumstances, shall be deemed to be a "serious case" as stipulated in the first paragraph of Article 287-2 of the Criminal Law. ”
(1) Providing help to three or more objects;
(2) Paying a settlement amount of more than 200,000 yuan;
(3) Providing funds of more than 50,000 yuan by placing advertisements or other means;
(4) Illegal gains of more than 10,000 yuan;
(5) Having committed illegal use of information networks, Those who have received administrative penalties for helping information network criminal activities and endangering the security of computer information systems, and also assisting information network criminal activities; (6) The crime committed by the person being assisted has serious consequences;
(7) Other serious circumstances.
When the behavior specified in the preceding paragraph is carried out, it is indeed impossible to verify whether the person being helped has committed a crime due to objective conditions, but the total relevant amount reaches more than five times the standards specified in items 2 to 4 of the previous paragraph, Or if it causes particularly serious consequences, the perpetrator should be held criminally responsible for the crime of aiding information network criminal activities.
"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 the Handling of Criminal Cases such as Telecommunications Network Fraud (II)"
9. Knowingly knowing that others are using information networks Anyone who commits a crime and provides one of the following assistance for the crime may be deemed to be a person who commits a crime, and may be deemed to have committed a crime. Article 12 of the "Interpretations 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 Networks and Helping Information Network Criminal Activities" "Other serious circumstances" specified in Item (7) of Paragraph 1:
(1) Acquisition, sale, leasing of credit cards, bank accounts, non-bank payment accounts, and Internet accounts with payment and settlement functions More than 5 (pieces) of passwords, online payment interfaces, and online banking digital certificates;
(2) Acquiring, selling, or leasing more than 20 other people’s mobile phone cards, data cards, and Internet of Things cards.