One article to understand the past and present life and defense points of the “crime of helping trust”

In the field of criminal defense in 2021, the most popular crime is the crime of helping information network criminal activities (hereinafter referred to as “criminal crime”). In the past nine months, the number of “criminal crimes” prosecuted by procuratorial organs nationwide has increased by 21.3 times year-on-year, and the number of indictments has reached 79,307, ranking fourth among all crimes.

What are the factors behind the surge in the number of “credit crimes”? This seemingly complicated crime, why are so many people touching it? How close is “faith in crime” to our daily life? Based on the defense experience of the “crime of aiding letter” in the past two years, the author has sorted out the following issues, hoping that through this article, the general public can quickly understand the “crime of helping letter”. Avoid everyday actions that you think are simple and accidentally become an accomplice to criminals. At the same time, some effective defense ideas are provided for the accidental suspicion of “crime of helping trust”, and the following directly enters the sharing of the text.

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1. What is the “criminal crime”?

2. What is the reason for the surge in the number of “criminal crimes”?

3. What seemingly ordinary behaviors in daily life are likely to constitute “crimes of trust”?

4. If it is suspected of “help letter”, what are the main points of its defense?

1. What is the “criminal crime” ?

The crime of aiding information and cybercriminal activities is also known as the “crime of aiding trust”. It was added by the “Criminal Law Amendment (IX)” in August 2015 , and is located in Article 287 of the “Criminal Law”: “Knowing that others use information networks to commit crimes, providing Internet access, server hosting, network storage, communication transmission, etc. for their crimes. If the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or only be fined.”

The reason for the addition of “Credit Helping Crime” is that with the development of information technology, the traditional crime model has shifted from offline to online especially property crimes such as telecommunication fraud and online gambling are increasing day by day . The number of criminals is increasing day by day or even exceeds that of the main criminals . When the main criminals are difficult to arrest and attack, there is no other basis for convicting and sentencing those who help. This has led to such crimes becoming more and more rampant, the people’s property interests are seriously damaged, and even more so. The home is destroyed. In order to fight crime more effectively, protect people’s property and the stability of social order. At this time, a new idea was born, that is, whether it is possible to cut off the transportation line of cybercriminals and take a way of drawing wages from the bottom of the pile to eliminate the impact of power-off fraudulent online gambling. And this is also the reason for the new “criminal crime”. 

1. From the perspective of the constituent elements of the ” crime of aiding trust” :

(1) Object: the state’s management order for the normal information network environment.

(2) Objective aspects: objectively implemented technical support such as providing Internet access, or server hosting and communication transmission for others, providing advertising promotion, payment and settlement and other helping behaviors. In practice, the above-mentioned objective behaviors are commonly seen as providing the relevant APPs for others to commit cybercrimes, renting, lending or hosting servers, providing bank accounts, Alipay, WeChat payment codes to receive and pay the corresponding payments, and virtualizing virtual accounts such as Huobi.com and OK.com. The currency trading platform provides payment and settlement and other helping behaviors with virtual currencies such as USDT.

 (3) Subjects: general subjects, namely units and individuals

(4) Subjective aspect: the perpetrator knows and intentionally

2. Theoretical point of view:

From the perspective of general attribution, if it constitutes a “crime of helping trust”, at least two conditions must be met. One is that the act of assisting the predicate crime needs to be carried out objectively; Deliberately performing the helping act. Both of these conditions relate to a similar point, which is the existence of a predicate offense. Therefore, at the beginning of the birth of the “crime of aiding and trusting”, there is still a lot of controversy up to now, that is, whether the “crime of aiding and trusting” belongs to the normalization of criminals, or just belongs to the sentencing regulation of criminals, or Is it an independent crime? Regarding the three theoretical viewpoints, this article does not elaborate too much, and now the main points are summarized:

The first point of view is to help normalize behavior. This point of view is based on the theory of joint crime. It is believed that the criminal desire regulates the helping behavior in the traditional joint crime. However, due to the increasing social harm of online helping behavior, helping the perpetrator plays a secondary or auxiliary role. Approaching the principal culprit, the assisting perpetrator will be treated as the principal culprit alone in legislation, and an independent statutory penalty will be set up.

The second point of view is sentencing rules . This view holds that the crime of aiding trust is not a normalized act of helping, but is still an assisting offender. It is only because the provisions of the Criminal Law provide an independent statutory penalty for the assisting offender, so the application of the penalty provisions of the General Provisions of the Criminal Law on accomplices (helping offenders) is excluded.

The third point of view is independent guilt . This point of view divides helping behaviors. If a single helping behavior can be evaluated as “serious circumstances”, then the co-criminal helper and the crime of helping trust will be established; if it cannot be independently evaluated as “serious circumstances”, It cannot independently cause the harmful consequences of upstream crimes. Considering that the harm of a single act is relatively low, but based on the massive base of cybercrime, it has a crime structure of cumulative crime, so it is independently convicted.

Here , the author agrees with Mr. Zhang Mingkai’s point of view ( for details, please refer to the understanding and application of certain clauses in the “Criminal Law Amendment (IX)” – on the crime of helping information network criminal activities), the “ crime of helping trust” belongs to sentencing regulation not to help The offender is normalized .

Because if it is turned into a criminal, it will expand the scope of the “crime of helping trust”, and those behaviors that provide help to the “crime of trusting” can also be evaluated as helping behaviors, so do these constitute help for the offender? guilty? This is obviously inconsistent with logic and jurisprudence.

 For a simple example, Zhang San is doing payment code generation work. He knows that some people in this industry will use the payment code for criminals to run points. One day, Li Si found him and asked him to generate the payment code, and said that his friend needed it. After Zhang San knew about it, he still produced a collection code for him. Later, Li Si was arrested for being suspected of “helping letter”, so can Zhang San also be defined as a helper of “help letter”? I personally feel that it is inappropriate, because Zhang San’s behavior is a neutral helping behavior, a daily behavior. If a criminal evaluation is made on this daily neutral helping behavior this obviously violates the principle of apology and restraint in the criminal law Then, after understanding the birth background, constituent elements and academic debates of the “criminal of aiding trust”, let’s take a look at why the number of “crimes of aiding trust” has soared.

 2. What is the reason for the surge in the number of “criminal crimes” ?

The author conducted a search on the China Judgment Documents Network with the keyword “crime of helping information network criminal activities”, and obtained a list of the number of judgment documents for the crime of helping information network criminal activities from 2015 to 2021. From the chart, we can intuitively see the year 2015. There were 2 cases involving “criminal help”. Although there were increases in 2016, 2017, 2018, and 2019, the number increased within a small range, and then there was an explosive growth in 2020. The growth rate in 2021 is even more exponential. So why is the number of “faith crimes” growing exponentially from 2020 to 2021?

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The author believes that there are two factors at play :

Level 1 :

Because in October 2019, the Supreme People’s Court and the Supreme People’s Procuratorate issued the “Interpretation on Several Issues Concerning the Application of Law in Criminal Cases of Illegal Utilization of Information Networks and Helping Information Network Criminal Activities” (hereinafter referred to as the Judicial Interpretation), the introduction of the Interpretation solves the problem. One of the biggest problems in the practice of “crime of helping trust” is the issue of the identification of subjective knowing . The author also mentioned above that among the constituent elements of “crime of helping trust”, subjective needs to be known and intentional. However, because the determination of “crime of helping trust” is complicated, there are many types of assistance, and there is no uniformly applicable standard, there are difficulties in the determination of “knowingly”. Before the judicial interpretation is issued, there are three ideas about the understanding of knowingly :

First , whether the perpetrator has verbal intentional contact or conspiracy or conspiracy with the person being helped does not affect the determination of “knowingly”. However, if the perpetrator does not know that the person being helped commits a cyber crime, it cannot be determined to constitute this crime.

Second , “knowingly” includes both exact and general knowledge. Knowing clearly about the nature and harm of the cybercrime committed by the person being helped is of course “knowing”. Knowing that the person being helped is using his helping behavior to commit cybercrime, but not knowing the The specific nature does not affect the determination of “knowingly”.

Third , generalized knowing is different from possibly knowing. May knowingly means that the perpetrator may know or may not know. For example, if the evidence in the case can only prove that the perpetrator may know, it cannot be regarded as “knowingly”, otherwise it is not in line with intentional crime Theoretically and procedurally, it does not conform to the jurisprudence that doubts favor the defendant. Therefore, judicial organs at all levels have different subjective and knowing understandings of the “crime of aiding trust”, so in practice, they cannot make accurate judgments, resulting in less application.

 However , the introduction of this Interpretation clarifies the presumption method of knowing :

Article 11 of the Interpretation: Provide technical support or assistance for others to commit crimes, under any of the following circumstances, it may be determined that the perpetrator knows that others use the information network to commit crimes, unless there is evidence to the contrary:

(1) Relevant acts are still carried out after being notified by the regulatory authorities;

(2) Failure to perform statutory management duties after receiving a report;

(3) The transaction price or method is obviously abnormal;

(4) Providing programs, tools or other technical support and assistance specially used for illegal crimes;

(5) Frequently adopting covert Internet access, encrypting communications, destroying data, etc., or using false identities to evade supervision or investigation;

(6) Providing technical support and assistance for others to evade supervision or investigation;

(7) Other circumstances sufficient to determine that the perpetrator knew.

After determining the presumption of knowing, the “Interpretation” also elaborates on how to determine whether the circumstances of “help letter” are serious, delimits the scope of criminalization, and clarifies the criteria for criminalization . The promulgation of the Interpretation provides guidance for judicial activities and there is a clear legal basis for the specific application of the “crime of aiding trust” . Therefore behaviors that could not be regulated in the past can be adjusted by the “crime of aiding trust”. thereby increasing the application rate of the crime resulting in a surge in the number of the crime .

Second floor :

The sudden epidemic in 2020 disrupted the pace of economic development and caused many social problems. In the field of criminal crimes, affected by the epidemic, the proportion of personal crimes has decreased, but the number of property crimes has exploded, among which “telecommunication network fraud” is the most representative. According to the official website of the Ministry of Public Security , in 2020, a total of 256,000 telecom and network fraud cases were cracked, 263,000 criminal suspects were arrested, 140 million fraudulent calls were intercepted, and 870 million fraudulent text messages were intercepted.

According to the data of the Supreme People’s Procuratorate , from 2019 to 2021, the procuratorial organs prosecuted 39,000, 50,000 and 40,000 people for telecom and network fraud crimes respectively. In 2021, although the number of prosecutions for telecommunications and network fraud crimes has dropped, it is still running at a high level in general. At the same time, the related cyber crimes have grown rapidly , mainly involving crimes of helping information and cyber crimes, covering up and concealing criminal proceeds and proceeds of crime, infringing on citizens’ personal information, obstructing credit card management, and buying and selling official documents of state organs. , certificate, seal crime, illegally crossing the country (border) crime, illegal use of information network crime, etc.

Among them, nearly 130,000 people were prosecuted for crimes of helping information and network crimes last year, an increase of more than 8 times year-on-year, ranking third in various criminal crimes (the first two were dangerous driving crimes and theft crimes), becoming a crime of telecommunication network fraud The first offense in the chain;

Against this background, based on the duty of fighting crime, protecting citizens’ property, and maintaining social stability, public security agencies across the country have focused on special operations such as “Yunjian-2020” and “Great Wall No. 2” to in-depth crackdown on telecommunication and network fraud crimes.

On December 16, 2020, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of Industry and Information Technology, and the People’s Bank of China jointly issued the “Notice on Severely Combatting, Punishing and Governing the Illegal Trading of Telephone Cards and Bank Cards Illegal and Criminal Activities” (referred to as “the “Notice”). Card Breaking Action”), crack down on illegal trading of “two cards” with a “zero tolerance” attitude , further strengthen industry supervision, punish those involved in “two cards” violations and criminals nationwide, and further promote the “disconnection” card” action.

 Since then, the national public security organs have carried out a series of vigorous measures of “Card Breaking Action” from top to bottom, which has raised the intensity of cracking down on telecommunication network fraud to an unprecedented height. “The intensity of the attack has also reached an unprecedented peak. Therefore, it is precisely because of the promulgation of the judicial interpretation of the “crime of aiding credit”, which clarifies the basis for the presumption of “knowing”, and the increased efforts to crack down on two-card crimes such as the “broken card” action, which has prompted the “crime of aiding credit” to increase from 2020 to 2020. In 2022, it will become the hottest crime in the criminal field.

 3. What seemingly ordinary behaviors in daily life are likely to constitute ” crimes of trust”?

The full name of the “crime of aiding trust” is the crime of helping information network criminal activities. This list of crimes is indeed quite complicated in the literal sense. Many of the parties involved in the case we came into contact with were at a loss when they were detained for the crime of “helping trust”. They felt that firstly, they did not understand computers, secondly, they did not engage in any online activities, and thirdly, their cultural qualifications were relatively low. The help of the crime of information cybercrime interaction was committed. This kind of cognition is common among those involved in the crime of “helping trust”. And this is what we usually call the misunderstanding of thinking.

For the crime of “helping trust”, it does not necessarily mean that you want you to know more about information technology as long as your behavior is sufficient to provide Internet access, server hosting, network storage, communication transmission and other technical support for the crime, or to provide advertising promotion, payment, etc. Even if the settlement and other help are provided, it does require a certain level of knowledge and technical means to provide technical support such as Internet access, server hosting, network storage, and communication transmission. But at present, about 80% of the “crimes of helping trust” focus on the last behavior, that is, providing assistance in payment and settlement.

The help behavior of payment and settlement sounds more written, but in fact it is very daily. For a simple example, in daily life, you lend your bank card, Alipay’s payment code, etc., which is payment and settlement, because you are a predicate crime. The transfer of funds provides corresponding assistance, and helping them to transfer the proceeds of crime is the practice of “facilitation”.

 So, what are the seemingly ordinary behaviors in daily life that may constitute “crimes of trust”?

1. It is illegal to rent WeChat accounts “unknowingly”

Any telecommunications network fraud is inseparable from the two elements of information flow and capital flow, and the most important carriers of information flow and capital flow are mobile phone cards and bank cards, referred to as “two cards”. In theory, as long as each card has a real name and real person, and the communication and transfer information can be traced back, the suspect can be identified in time and the loss can be recovered for the victim. However, in real life, many scammers are far abroad. In order to evade the attack, they usually commit fraud by renting WeChat accounts, purchasing mobile phone cards and bank cards through members of offline organizations in China. Therefore, once Xiaoli rents out his WeChat account, there is a high probability that “criminal help” will be involved.

2. Selling and lending “two cards” constitutes a crime

This “card” is a “card” in a broad sense. In terms of mobile phone cards, it includes not only the mobile phone cards of the three major operators we usually use, but also the phone cards of virtual operators, and also the Internet of Things card. In terms of bank cards, it includes not only personal bank cards, but also corporate accounts and settlement cards, as well as non-bank payment institution accounts, which are what we usually call WeChat, Alipay and other third-party payment platforms. Therefore, it is not that the loan of bank cards and phone cards does not involve criminal acts. As long as the items you lend can help criminals make payment and settlement, then they are the target of “criminal assistance”.

3. Help people brush orders and walk the water

The reason why selling and lending bank cards constitutes a crime is that when fraudsters receive stolen money, in order to ensure safety, they need to launder the money and then transfer it into their own accounts. In this process, some criminals take advantage of the lack of public awareness or greed for small profits, so they allow the parties to use their bank cards to post payments to upstream themselves by brushing bills and rebates, which actually plays a role in helping upstream funds. Whitewashing is also one of the common behaviors that constitute the “crime of helping trust”.

4. Pure OTC virtual currency

Although the act of buying and  selling No criminal evaluation will be received, but if selling and selling virtual currency does not rely on large exchanges, but chooses offline cash transactions or pure over-the-counter transactions, then once there is an inflow of funds involved, there will be a greater criminal risk. Because changing the transaction behavior is relatively abnormal, as a person in the currency circle, you should have an increased duty of care. After you have not reviewed the source of funds of the counterparty, adopting a different transaction method can meet the “crime of trust”. People should know that, and because of the characteristics of virtual currency itself, more and more criminals use virtual currency to transfer assets and avoid criminal strikes. Therefore, currency circle transactions should be cautious.

4. If it is suspected of “help letter”, what are the main points of its defense ?

Then, if some of your own behaviors lead to the “crime of helping trust” in your life, how to conduct an effective defense, so as to obtain the defense effect of innocence, non-prosecution, and from felony to misdemeanor, the author combines relevant judicial precedents Summarized the following defense ideas for handling the case with yourself.

 1. The determination of subjective “knowing”

The most important factor in convicting the crime of “helping trust” is to judge whether the perpetrator has “knowing” about the predicate crime, and the determination of this “knowing” is more complicated, and it is generally done by inferring the knowing, and inferring the knowing must According to Article 11 of the Interpretation, this sentence needs to judge whether the behavior of the actor, such as the transaction method, transaction price, etc., is abnormal. If there is evidence to prove that the behavior of the actor is a normal behavior, then even objectively The perpetrator provides help for the predicate crime, but lacks subjective “knowing”, so it cannot be regulated by this crime either.

For example, in a virtual currency transaction case represented by the author, the parties involved in OTC transactions on a leading exchange, the transaction frequency and bank flow were relatively high, and later a fund involved in the case flowed into the party’s account, resulting in the freezing of his bank card. When the freezing agency handles the thawing of bank cards appropriately, the public security agency detains them for the crime of “credit aid” due to their lack of industry awareness of virtual currency, based only on bank flow and transaction frequency. The reasonableness of the transaction behavior and transaction price of the parties in the transaction process, and finally, in the arrest stage. The prosecution heard our defense. Arrest will not be granted on the grounds that the parties do not “know”.

2. Whether the predicate crime is established

The “crime of aiding trust” is a crime of helping information network criminal activities. The condition for its establishment is that the predicate crime really exists. If the predicate act does not constitute a crime, then the assisting act should not bear the corresponding criminal responsibility. Therefore, in the process of defending the “crime of helping trust”, it is necessary to grasp an important defense point of predicate crime.

 In the case that the author came into contact with, Zhang San was engaged in overseas trade, but because of the willingness of the epidemic, the country where the counterparty, Li Si, had no foreign exchange reserves, could not settle foreign exchange normally. So he proposed to pay RMB to Zhang San’s account, and Zhang San agreed. Li Si arranged for a local legal third-party payment institution to pay the corresponding payment to Zhang San’s Chinese bank account, and as a result, he received online gambling funds, which resulted in his bank account being frozen. In the process of investigating the case, the public security organ detained Zhang San for the crime of “helping credit” because he had a large amount of online gambling funds in his account.

In the process of agency, we explained to him that although we received online gambling funds in the process of trade, even if we participated in online gambling, it was only an administrative violation, and Zhang San received online gambling funds, not It is subjective and intentional, but in the process of trade collection, the gambling-related funds paid by the third-party platform flow in. According to the concept of lifting weights with lightness, participating in online gambling is not a criminal act, so Zhang San received online gambling funds because of trade transactions. The conduct should not be subject to criminal evaluation. Finally, the case-handling authority listened to our opinion, and the case was dismissed during the investigation stage.

3. Clarify whether helping behavior is a neutral behavior

Neutral helping behavior refers to behaviors that appear to be daily life behaviors, business behaviors, and other behaviors that do not pursue illegal purposes, but objectively promote the crimes of others (principal offenders). Although the current criminal law does not exclude the criminalization of neutral helping behavior, as long as the elements of the crime are met, even if the neutral helping behavior is implemented, there is still the possibility of being investigated for criminal responsibility.

However, in the crime of helping information cybercriminals, network service providers provide network access services, which are common, neutral and harmless behaviors in daily life, and inevitably provide technical support for cybercrimes, which is a typical neutrality. Helping behavior. On the online platform, every user should be responsible for his own behavior, and whoever commits a crime is responsible, and cannot be blamed at will on the network service provider that provides neutral assistance.

Therefore, when judging whether the actions of the parties in the case constitute helping actions, a distinction needs to be made. Not all neutral helping actions can be criminally evaluated. If some neutral helping actions are needed by the market, they are also indispensable in daily life. , then this kind of behavior should not be included in the system of criminal evaluation.

4. Identification of funds involved and identification of profit amount

In the determination of the “crime of trust aid”, the more critical and easily overlooked are the determination of the amount involved and the determination of the amount of profit. According to the “Interpretation”, if the circumstances of the crime of trust aid are serious, one of the following conditions must be met: ( 1) Provide assistance to three or more objects; (2) Pay settlement amount of more than 200,000 yuan; (3) Provide funds of more than 50,000 yuan by means of advertisements; (4) Provide illegal gains of more than 10,000 yuan; The common ones are (2) and (4), and when the public security organ determines the amount, it is often based on the party’s bank flow, rather than the predicate criminal funds.

To give a simple example, Zhang San was defrauded of 100,000 yuan. The fraudsters used virtual currency transactions to find Li Si who was willing to trade over the counter, and made several transactions with Li Si, with a total transaction amount of 50,000 yuan. Fourth, because it is an OTC business, there are many counterparties in its own transactions, and the transaction turnover is 10 million. In the end, the public security organ reported the arrest with 10 million as the amount involved.

This is obviously wrong, because when it is impossible to determine whether the upstream of the funds are all criminal funds, it is not possible to simply determine all the running water as the funds involved in the case, and the “Interpretation” also clearly stipulates that the implementation of the acts stipulated in the preceding paragraph will ensure Due to objective conditions, it is impossible to verify whether the person being helped has reached the level of a crime, but the total relevant amount is more than five times the standard specified in Items 2 to 4 of the preceding paragraph, or if it causes particularly serious consequences, the crime of aiding information network crimes shall be charged. To investigate the criminal responsibility of the perpetrator .

Therefore, if the nature of the funds cannot be determined, it should be calculated based on five times the actual inflow of funds. If it does not exceed 1 million yuan, the circumstances are not serious, and the “crime of helping trust” should not be used for evaluation.

V. Conclusion

 Since the Criminal Law Amendment (IX) was added in 2015, the crime of helping information and cybercrime activities has been added to effectively punish cybercrimes, especially crimes such as telecommunication network fraud and online money laundering, safeguard the legitimate rights and interests of the people, maintain normal network order, and give full play to the played an important role. However, in judicial practice in the past two years, the scope of the “crime of helping trust” has been expanding, and the scope of the attack has continued to expand, so that as soon as the “two cards” problem or the issue of “illicit funds” is involved, it is a matter of course to apply the “help crime”. Faith in the crime”, which leads to the “faith crime” not only becoming a pocket crime, but also prone to lack of awareness of the crime, resulting in wrongful convictions. In response to this, the author sorts out the past and present life and some common defense points of the “crime of helping trust” , in the hope that the general public can clearly understand what “the crime of helping trust” is. The theory of accomplices involved in “crime of helping trust” , the criteria for distinguishing between attempted attempts, and the implementation of the criminal policy of combining leniency with strictness are discussed in depth , which will be beneficial to the development of the rule of law.

Author: Liu Lei

Master of Economic Law, a practicing lawyer of Beijing Yingke (Shanghai) Law Firm, an advanced model of Yingke Shanghai’s “New Decade. New Youth”, and a researcher at the Institute of Artificial Intelligence and the Rule of Law of Gansu University of Political Science and Law.

Practice: Lawyer Liu has represented nearly 100 criminal cases involving digital currency, focusing on legal compliance in new economic fields such as digital currency and blockchain.

Academic: Mr. Liu has published 2 academic papers, which were published in “Journal of Shanghai University of Political Science and Law” and “Social Science News”, one of which won the “First Prize of Guangxi Law Society”; Published two papers on the “Legal Newspaper”; published more than 50 articles on the public account; wrote the book “Digital Currency and Law” (submitted).

Attorney Liu was invited to give a lecture on “Young Leading Talents of Gansu Lawyers Association”; was invited to give a speech at the “First Digital Financial Rule of Law Forum”; was invited to give a lecture on the “Foreign Legal Service Lawyers Training Class” hosted by the Hainan Provincial Department of Justice. Lecture; invited to give a keynote speech for Gansu University of Political Science and Law.

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