Viewpoint: On the Protection of Frozen Persons in Telecommunications Network Fraud

Abstract: In view of the particularity of telecommunications network fraud and the difficulty of punishment, investigative agencies have implemented freezing measures to punish them. Objectively, they are subject to the indivisibility of account flow, which causes some illegal and criminal activities to be restricted by freezing measures. Form the phenomenon of blemishes being frozen. The legal obligation of the frozen person to cooperate with and tolerate freezing measures is that the legislation has created a legal value structure supplemented by the principle of ensuring the operation of investigative power and restoring and remedying the property rights of the frozen person. However, as far as the persons whose defects are frozen are concerned, their obligation to tolerate due to the wrong judgment of the investigative agency has objectively exceeded the limits of social obligations that a legitimate citizen should bear, making it necessary to guarantee the operation of the right of investigation and protect the persons whose defects are frozen. There is tension between equity. There should be a certain boundary for the person whose defect is frozen to bear the obligation of tolerance, which can be judged by whether the freezing measures comply with the principle of proportionality. The phenomenon of frozen persons with defects highlights many problems in my country’s freezing system, which should be improved by clarifying the legal status of the persons frozen with defects, improving the freezing objection system, and establishing a freezing guarantee system.

Keywords: telecommunications network fraud; freezing measures; defective freezing of persons; freezing objections; freezing guarantees

8sPGfKbMZIr1q1LFpoE0agX731PVXsDx0Fo6w101.jpeg

Text|Attorney Liu Lei

Source | “Journal of Shanghai University of Political Science and Law (Rules of Law)”

1. Raising the problem

Telecommunications network fraud refers to criminal acts in which criminals use technologies such as telecommunications and the Internet to trick victims into transferring funds to banks or payment accounts under their control by sending text messages, making calls, and planting Trojan horses. In recent years, with the popularization of smart phones and new media, telecommunication network fraud cases have occurred frequently, and it has become a new type of crime that has extensively affected the legitimate rights and interests of citizens and social life. Criminals illegally purchase bank cards and communication cards, and use modern communication and Internet financial technology to realize the concealment of criminal activities, which makes it more difficult for the country to crack down and punish telecommunications network fraud.

In practice, public security organs are responsible for investigating telecommunication network fraud cases. In the process of fighting and punishing telecommunications network fraud, the public security agency mainly judges the suspect based on the flow of the victim’s defrauded funds account, and then freezes the bank account to preserve criminal evidence and prevent the transfer of the property involved. However, the multi-level accounts downstream of the victim’s account form a complex, multi-level radial pipeline network. Are these accounts collected by unrelated persons based on legitimate reasons, or are they criminals who defraud the criminals themselves or assist the criminals to sell their stolen goods? It is difficult for public security organs to judge during the investigation stage. The public security agency usually judges the suspect based on the following factors, and then freezes his bank account: first, the downstream account is close to the victim’s account hierarchy; second, the length of time the downstream account receives the stolen money and the victim was deceived; third , The amount of deposits in downstream accounts.

The above judgment method will inevitably lead to false freezing. That is to say, in order to achieve the purpose of detecting crimes, a legitimate citizen without participating in illegal crimes may be implicated in part of the account flow and cause all properties to be frozen. To a certain extent, the property rights and interests have been over-restricted or lost. For example, in April 2021, the Public Security Department of Yiwu City issued “A Letter to Public Security Organs All over the Country”, which caused widespread concern about the freezing of accounts of Yiwu cross-border trade merchant groups: criminal gangs in telecommunication network fraud cases colluded with underground banks, The fraudulent funds were directly turned into ready-to-use payment and transferred to business operators for laundering, causing the bank accounts of a large number of merchants to be frozen by public security agencies across the country. When the frozen person is restricted by the freezing measures and there are flaws, how to realize the protection of legal rights and interests is a practical problem that needs to be urgently responded to in legal practice and theoretical research.

At present, the theoretical research and system construction of freezing measures in our country mainly focus on how to realize the effectiveness of investigative powers through freezing measures. Therefore, the rights and interests of persons frozen by defects are more likely to be ignored, and therefore they are not fully respected and protected. The refinement of the concept of the defective person being frozen will help raise the academic and practical attention to the rights and interests of the person being frozen, and enhance the fairness of the freezing measures. This is precisely the procedural law concept of rights protection in the telecommunications network fraud detection freezing procedure Requirements. More importantly, people whose defects are frozen are widely present in the investigation and freezing process in various fields. It is only because of the particularity of telecommunications network fraud and the difficulty of punishment that people who have been frozen with defects are more common. This means that the observation of people who have been frozen for flaws in telecommunications network fraud will further feed back the research and improvement of the entire freezing system.

2. The formation of persons with defects in telecommunications network fraud

Frozen telecommunications network fraud is a person who has not participated in telecommunications network fraud or assisted criminals in scams, but because criminals used their bank accounts or payment accounts to engage in crime-related activities, they were wrongly or improperly frozen by investigative agencies. The third person. Generally speaking, in order to track criminal traces, preserve criminal evidence, and prevent the expansion of criminal harm, investigative agencies have the right to freeze any accounts suspected of illegal crimes. However, if the investigative agency freezes the account of a third person who is not involved in the crime based on wrong judgment; or the frozen person can fully prove that he did not participate in the crime and requests the investigation agency to promptly lift the freezing measures or adjust the scope of the frozen funds but is rejected, This has resulted in false freezing and improper freezing by investigative agencies, resulting in restrictions on property rights and loss of rights and interests for the frozen persons. Whether in theory or in practice, people with blemishes are frozen in various fields and the whole process of criminal investigation freezing, among which, the freezing of telecommunications network fraud is the most significant.

In the legal system of criminal procedure, the concepts related to the frozen person include the “criminal suspect” and the “subject to be investigated.” Although the two are related to the frozen person, they cannot be covered in scope and are functionally It is also impossible to clarify and solve the problem of people being frozen with defects. Specifically, a criminal suspect refers to a party who has been criminally prosecuted in accordance with the law during the investigation stage and the review and prosecution stage of a public prosecution case. The concept of a criminal suspect solves the problem of how to characterize the prosecuted person before being convicted according to law. Its theoretical basis is the principle of presumption of innocence to avoid excessive use of the term “criminal”. The person being frozen is not a criminal suspect, because the compulsory measure of freezing is aimed at the account property of the person being frozen rather than the person being frozen. Any illegal property in the person’s account may not necessarily be prosecuted. The subject of investigation refers to the masses of society who have been investigated and verified by the investigative agency through non-compulsory measures because of their understanding of the case or clues. The subject of investigation is not a participant in a criminal case and is not suspected of breaking the law and therefore cannot be the subject of compulsory measures. The frozen person is also not the subject of investigation, because the frozen person is a party to a case whose property rights are restricted due to compulsory measures. As far as the persons whose defects are frozen are concerned, the two concepts of criminal suspects and persons under investigation cannot highlight the characteristics of the defects of freezing measures among persons whose defects are frozen, and therefore cannot provide support for the system design and specific mechanisms of rights protection. (Table 1 below)

5539812_image3.png

(1) The origin of the frozen person

In the case of telecommunications network fraud, the formation of persons whose defects are frozen is inseparable from the governance of telecommunications network fraud. The characteristics of telecommunications network fraud make it difficult to punish telecommunications network fraud. Investigation agencies have gradually formed an investigation and punishment system that uses frozen accounts as the main governance tool.

1. The basic characteristics of telecommunications network fraud

Telecommunications network fraud mainly presents seven characteristics: First, the criminal behavior is non-physical. The suspect can use the telecommunications network tools to carry out the fraud without direct contact with the victim; second, the technology of the criminal method With a high degree of transformation and rapid change, some criminal suspects have begun to adopt big data analysis methods, through the sorting and analysis of illegally obtained personal information, to tailor targeted scams for victims; third, commit crimes The cost of crime is low, and the coverage of criminal targets is large. Criminals can use telecommunication network tools to randomly place a huge amount of fraud information in a very short time; fourth, the criminal organization is highly specialized, the criminal gang has a clear division of labor, and someone is responsible for preparing the crime Tools, some are responsible for providing technology and data, some are responsible for organizing and coordinating, some are responsible for communicating and deceiving victims, and some are responsible for the flow of funds, which have already been industrialized; fifth, cross-regional, transnational crime cases occur frequently; sixth, the criminal market Using social hot spots to commit fraud, for example, during the period of the new crown pneumonia in 2020, criminal gangs used charitable donations and material sales as the banner to commit fraud; seventh, the amount of money involved in criminal gangs is relatively large, but the amount involved in a single case is small. Telecommunications network fraud requires the use of a large number of banks or payment accounts to transfer stolen money.

2. Difficulties in punishing telecommunications network fraud

The above-mentioned characteristics of telecommunications network fraud have brought great difficulties for investigative agencies to detect and punish telecommunications network fraud. From the perspective of the ability of the investigative agency: First, it is difficult to detect evidence. Since telecommunication network fraud has achieved non-contact and concealment through scientific and technological means, the cost of investigation is relatively high, and the difficulty of obtaining and storing evidence is relatively large. The evidence obtained is often The association with criminal behavior is weak. Secondly, the investigative power is relatively insufficient. There is an “imbalance between investigative power and criminal power” in telecommunication network fraud cases, while investigating cases takes a long time, has a large task load, and the staffing of grassroots public security organs is obviously insufficient. Third, and most importantly, it is difficult to recover stolen money. On the one hand, criminals transfer stolen money and distribute stolen money quickly and at multiple levels, and often resort to professional money laundering teams to turn to overseas for whitewashing; on the other hand, victims It was discovered that the deception and reporting were not timely. Investigations have shown that most victims report the crime 24 hours after the transfer.

Judging from the characteristics of telecommunications network fraud cases in recent years: first, fraudsters and their gangs have been hiding overseas for a long time, posing challenges to punishment, hunting, and stolen stolen work; secondly, criminals have used various loopholes and channels to illegally purchase and use identities The use of certificates, bank cards, telephone cards, etc., as tools has increased the scope and pressure of the investigative agency’s work; third, the popularity of virtual currencies has facilitated criminals to sell stolen goods and launder. Since encrypted assets cannot be located, tracked, and frozen, investigative agencies It can only be investigated and verified through the flow of bank accounts to prevent the circulation of illegal funds.

3. Freezing measures: a powerful tool for investigative agencies

The ultimate goal of telecommunications network fraud is to illegally occupy the victim’s property, generally account funds. In order to achieve the ultimate goal, criminals need to use a bank or payment account as a tool to complete the transfer of funds. The flow of funds has become the key direction of the investigative agency’s investigation and evidence collection. Once the investigative agency finds clues involved in the case, it can freeze the accounts involved in the case in accordance with the law. On the one hand, it can block the flow of funds involved in the case to prevent criminals from transferring funds; on the other hand, it can seal up the account information to find clues and preserve evidence for investigating the case. In other words, freezing measures have become a powerful tool for investigative agencies, and this has also become a powerful means for my country to punish telecommunications network fraud. In recent years, with the help of the function of freezing measures, investigative agencies have continuously improved the systematization of telecommunication network fraud punishment: In 2016, multiple departments jointly established an emergency payment stop and rapid freezing mechanism to improve the efficiency of freezing measures; in 2020, multi-sectoral joint Carrying out the “broken card” operation to cut off potential tools for telecommunications network fraud by eliminating illegal accounts in advance, so as to weaken the ability of criminals to transfer funds, the essence of which is the advancement of freezing measures.

(2) The constituent elements of the frozen person

Freezing measures are the main tool used by investigative agencies to detect telecommunications network fraud crimes. Its purpose is to find criminal clues, preserve criminal evidence, and prevent the expansion of criminal results such as the transfer of illicit funds. However, due to the aforementioned characteristics of telecommunications network fraud and the difficulty of governance, investigative agencies are greatly restricted by the complexity of the case and the limited investigative capabilities, and the investigative measures taken in individual cases cannot be guaranteed to be completely correct. In practice, “the police often seize a large number of bank cards, but it is difficult to verify the nature of the bank card funds one by one, and it is difficult for the court to determine whether the bank card funds are fraudulent or not.” If the frozen person does not participate in illegal or criminal activities, but the account is frozen, this creates a problem of the protection of the frozen person. Three factors need to be considered when judging the person who has been frozen for the defect:

1. The investigative agency adopts freezing measures

When an individual is frozen by the investigative agency and becomes a frozen person, it is the first element of a person to be frozen. Frozen persons are subject to freezing measures, either because their specific accounts are related to criminal activities, or because the investigative agency misjudged that their specific accounts are related to criminal activities. Therefore, the investigative agency has taken freezing measures on the accounts involved in order to further investigate and confirm whether the frozen persons are involved in illegal and criminal activities. At the same time, they will further search for information on other related accounts to form a network of investigations.

2. The frozen person did not participate in illegal or criminal activities

The fact that the frozen person did not participate in illegal or criminal activities is the second and substantive element of the defect of the frozen person. The frozen person did not participate in illegal or criminal activities, but the account and its funds were frozen by the investigative agency. According to Article 144 of the Criminal Procedure Law, investigative agencies can inquire about and freeze the deposits, remittances, bonds, stocks, fund shares and other properties of criminal suspects in accordance with regulations, and relevant entities and individuals shall cooperate. In other words, if the investigative agency determines that a specific account is suspected of telecommunications network fraud, or is required for investigation, it can implement freezing measures on the specific account, and the frozen person should cooperate. This is the power conferred by the constitution and law on investigative agencies, and it also imposes a certain degree of tolerance for individual citizens, especially those who are frozen.

3. The freezing measures exceed the general tolerance

Frozen persons who have not participated in illegal or criminal activities have the social obligation to tolerate freezing measures. However, this social obligation has boundaries, that is, the freezing measures must be appropriate and cannot exceed the general tolerance level, that is, at a certain stage of the detection of telecommunications network fraud, the freezing measures are found or proved to be wrong; or freezing The range is too large or has not been adjusted in time. In other words, the frozen person obviously has nothing to do with the illegal and criminal activities from the beginning, or although the frozen person’s account is related to the illegal and criminal activities, only part of the funds needs to be frozen due to investigation needs. Then, the normal freezing measures exceed their general freezing measures. The degree of tolerance is the result of a person being frozen with blemishes.

(3) The main classification of persons frozen for defects

According to the subjective judgment of the investigative agency, the persons frozen for defects can be divided into persons frozen for mistakes and persons improperly frozen. The investigative agency’s subjective judgment on whether the frozen person violates the law or crime is the prerequisite for the implementation of freezing measures. The wrong or improper judgment of the investigative agency means that the flawed frozen person has accepted wrong or improper freezing measures.

Wrongly frozen person refers to a third person who has been frozen due to the wrong judgment of the investigative agency to participate in illegal and criminal activities. If the frozen person did not participate in the crime, and there is insufficient evidence to show that his account is suspected of being illegal, then the freezing measures taken by the investigative agency have no legal basis and are wrong from beginning to end. This means that the erroneously frozen person bears the losses caused by the illegal freezing of the investigative agency, which is a special sacrifice that goes beyond the general duty of tolerance. For example, in practice, telecommunications network fraud criminals conduct normal civil transaction activities through banks or payment accounts. If the investigative agency directly freezes the other party’s account in normal transactions without identifying it, this misjudgment will excessively restrict the other party’s Property rights and interests constitute the appearance of the wrongly frozen person.

An improperly frozen person refers to a person whose specific account can be proved by the investigative agency to be suspected of illegal and criminal activities based on certain evidence, but it can be determined during the investigation that it does not need to continue to take freezing measures or does not need to take a full range of freezing measures, but is still completely frozen The third person. The investigative agency’s judgment that the account is suspected of illegal and criminal activities is a prerequisite for the implementation of freezing measures. If during the follow-up investigation process, the investigation agency finds or the frozen person provides evidence to rule out the possibility of the account being suspected, then the freezing measures will lose the basis of existence. In addition, if it is later discovered that only part of the account funds needs to be frozen to achieve the purpose of the freezing measures, then the freezing beyond the scope is unnecessary. The freezing measures should be lifted in a timely manner without being lifted, and the excessive range of freezing means that the person being frozen bears an obligation to tolerate beyond a reasonable range. For example, in practice, telecommunications network fraud criminals mistakenly transfer part of the funds to other people’s accounts due to mistakes in money laundering methods, and the wrongly transferred funds should be frozen. However, if the investigative agency directly freezes all the account funds of the party who has obtained the remittance in good faith, this improper judgment will make the party who has obtained the remittance in good faith bear unreasonable property rights restrictions, which constitutes an improperly frozen person.

The meaning of the distinction between falsely frozen persons and improperly frozen persons is that the subjective judgment of the investigative agency’s freezing measures is different, and therefore, the degree of unreasonable tolerance obligations of the frozen persons are different. Correspondingly, the rights protection and relief mechanisms of the two types of frozen persons are also different.

3. Obligation to tolerate people who have been frozen for blemishes

(1) The nature of the obligation of tolerance of the frozen person

The duty of tolerance of the frozen person refers to the legal obligation of the frozen person to tolerate and cooperate with the freezing measures taken by the investigative agency. Article 144 of the Criminal Procedure Law stipulates the obligation of relevant entities and individuals to cooperate with investigative agencies in freezing measures. The “relevant units and individuals” here refer to the persons being frozen and the commercial banks, financial institutions and other units that cooperate with the implementation of the freezing measures. “For the public interest, citizens have an obligation to tolerate investigations. This is the price that citizens must pay for a peaceful life.” The essence of the obligation to tolerate is the legislative arrangement for the relationship between the right of investigation and the basic rights of citizens.

The power of investigation is the power to collect evidence in accordance with the law, expose and confirm a crime, find the perpetrator, and take necessary compulsory measures. Investigation power is essentially similar to administrative power, emphasizing execution and efficiency, “that is, by collecting reliable and sufficient evidence, as far as possible, all criminals are handed over to trial, so as to achieve the functional goal of the Constitution and the law to maintain social peace and order. ” 

The operation of investigative power refers to the basic rights of citizens, such as the person and property, and the operation of investigative power relates to the restriction and deprivation of citizens’ rights and interests. In particular, the use of various compulsory measures and special investigative measures will inevitably form serious interference with citizens’ basic constitutional rights. Once abused, they will inevitably result in serious human rights violations. As Savigny put it, “The actions of the police station contain the danger of infringement of civil rights from the beginning, and experience tells us that police officers often do not benefit the people involved and commit such mistakes of infringement of civil rights.” Therefore, it can be said that there is a natural tension between the operation of investigative power and the protection of citizens’ basic rights, which requires legislators to consider and balance them when constructing an investigation system.

Freezing measures are a direct manifestation of investigative power and a system design to ensure the smooth progress of criminal procedures. At the beginning of the criminal procedure, the initiation of the investigative power has the power to control the personal freedom of the criminal suspect within a certain range and restrict the freedom of the criminal suspect’s property to a certain extent, so as to prevent the suspect from escaping and transferring stolen money. The freezing measure is a temporary compulsory measure. The legal effect of the freezing measure is that the right to use and dispose of the frozen property is temporarily restricted, and the frozen person cannot obtain benefits by using or disposing of the frozen property.

Frozen persons have an obligation to tolerate freezing measures, which essentially means that legislators put the protection of the operation of the investigative power at a higher priority in the pursuit of the two values ​​of ensuring the operation of the investigative power and protecting the basic rights of citizens. It is to give priority to the public interest represented by the investigative power, and to provide a corresponding supplementary mechanism for protecting the basic rights of citizens on the basis of protecting the public interest.

In order to avoid the abuse of the priority status of the investigative power, the theory and construction of the investigative system put great emphasis on the legal control of the investigative power. On the one hand, it emphasizes the strict standardization of the procedures for the operation of the investigative power; on the other hand, it emphasizes the temporary and procedural nature of the investigative power, that is, the restrictions on civil rights by investigation activities such as freezing measures are temporary, and the restricted rights can be followed up The judicial process or the final judgment of the court shall be restored.

Therefore, in order to balance the tension between the right of investigation and the basic rights of citizens, the system design of “freezing measures-the duty of tolerance” has formed a law with the principle of ensuring the operation of the right of investigation as the priority, supplemented by the restoration and relief of the property rights of the frozen persons. Value structure. The structure of “freezing measures—duty of tolerance—restorative protection” is a whole. Once it is divided, it will inevitably lead to the alienation and expansion of freezing measures and the problem of excessive interference of investigative power in citizens’ lives.

(2) The particularity of the obligation to tolerate the person who has been frozen

For general frozen persons, the system design of “freezing measures-tolerance obligations-restorative protection” is a value structure that prioritizes the maintenance of public welfare and supplements the protection of private interests. When the legal mechanism for restoring and remedying the property rights of the frozen persons in the follow-up judicial procedures can function normally, then generally the frozen persons can receive supplementary protection. Supplementary protection is generally to remove the restorative protection of the frozen state of property rights, so that the property rights of the frozen person are restored to the state before the freezing. Due to the suspicion of illegal crimes objectively, the losses suffered by the frozen persons due to freezing measures are generally attributed to their own fault to a certain extent, and therefore cannot be fully protected by the law.

However, for those whose defects are frozen, the restorative protection provided by this system design and value structure is not sufficient. If the person who has been frozen for defects did not participate in illegal and criminal activities objectively, the losses suffered by the freeze-tolerant measures should be attributed to the subjective judgment of the investigative agency and should be fully protected by law. More importantly, the person who is frozen with defects assumes the obligation of tolerance due to the wrong judgment of the investigative agency, which objectively exceeds the limit of the social obligation that a legitimate citizen should bear. Compared with general persons who are frozen, persons whose defects are frozen have a more urgent need for legal protection.

The particularity of the tolerable obligation of the person frozen by the defect lies in the fact that only restoring the original property rights of the person frozen by the defect will still cause them to suffer improper losses. This means that there should be a review mechanism in the follow-up judicial procedures to judge whether the implementation of the freezing measures is legal and proper, and to provide more adequate protection of property rights for the persons whose defects are frozen. In other words, there are boundaries in the tolerance obligations of persons whose defects are frozen, and the freezing measures implemented by investigative agencies should be limited.

(3) Boundary of the tolerable obligation of the frozen person

The boundary of the duty of tolerance is to restrict the exercise of investigative power in order to protect the person who is frozen. Specifically, under the current imperfect legal norms and procedural mechanisms, the exercise of investigative power should maintain a certain modest attitude to avoid unnecessary loss of property rights and interests of persons frozen for defects. This is the handling of the property involved in the criminal procedure, and it is related to the protection of citizens’ property rights that the Constitution attaches great importance to. In recent years, scholars have continuously called for the application of the principle of proportionality in criminal law legislation and criminal justice to prevent abuse of the criminal system. More scholars have conducted a theoretical system construction on how to use the principle of proportionality to regulate investigative behavior. 

Since freezing measures involve the balance between state power and citizens’ basic rights, the substantive legality of freezing measures can be judged based on the principle of proportionality, that is, whether the freezing measures excessively limit the defects of the people who are frozen under the premise of satisfying formal legality Property rights. In general, the principle of proportionality is composed of three sub-principles of appropriateness, necessity, and balance. It is a justice concept and public law theory that achieves a balance between public interests and personal interests. 

1. Whether the freezing measures are appropriate

The principle of appropriateness requires that the means used by the state power must be conducive to the realization of the goal, and at the same time, the goal pursued by the state power should be legitimate. Specifically, the purpose of the investigation agency’s implementation of freezing measures is to find criminal clues, preserve criminal evidence, and prevent the expansion of criminal results such as the transfer of stolen money, and the implementation of freezing measures should objectively contribute to the realization of this purpose. If the freezing measures objectively do not help the realization of the investigative function, then the freezing measures are superfluous and will cause meaningless restrictions on the persons whose defects are frozen. This requires investigative agencies to have sufficient evidence to prove the purpose and objectivity of the freezing measures when implementing freezing measures.

2. Is the freezing measure necessary?

The principle of necessity requires that the state power should choose the method that interferes with citizens’ rights and interests the least among the methods that are equally effective in achieving the goal. Specifically, the implementation of the freezing measures by the investigative agency should be the method that has the least interference and impact on the rights and interests of the frozen persons among the means to achieve the investigative functions and purposes. In other words, if the investigative agency can achieve its functions through other means with less interference, it should not be achieved through freezing measures. Otherwise, freezing measures are not necessary, and the person who has been frozen will suffer unnecessary losses.

3. Are the freezing measures balanced?

The principle of balance, that is, there must be a certain ratio between the means adopted by the state power and the goal it achieves. This requires that the exercise of public power by the state causes less damage to the civil rights than the social public interest it intends to achieve. Specifically, the public interest maintained by the investigative agency in the implementation of freezing measures and the damage to the property rights and interests of the person being frozen by the freezing measures shall not exceed a certain limit. If the investigative agency only needs to freeze a part of it or for a period of time, then the excessive range and long period of freezing will exceed the balanced ratio, and the person who is frozen will suffer disproportionate restrictions.

To sum up, the principle of proportionality, as a criterion for judging the boundaries of the tolerable obligations of persons frozen with defects, is to judge whether the exercise of investigative power forms a reasonable balance between public interest and personal interest. This is the essential purpose of investigative measures as a legal system. Objectively speaking, the judging standard of the principle of proportionality is the review standard after the freezing measures are implemented, and it is the review standard that can be adopted in the follow-up judicial procedures for the frozen person’s application and the competent authority to review the freezing measures. However, the review in the follow-up judicial procedure will inevitably fall into the obstacle of the delay of the review agency’s discretionary period. This means that in addition to the review standard, it is still extremely necessary to construct more substantive rights protection systems and channels in the investigation process.

4. Protection of the rights of persons frozen for telecommunications network fraud

In recent years, telecommunications network fraud and criminal activities have shown a “spreading and viral” situation, with an average annual increase of about 34% in the number of cases. Due to the complexity of telecommunications network fraud and the difficulty of punishment, freezing measures have been widely used in special operations such as “Yunjian-2020”, “Card Broken”, and “Great Wall 2”. While punishing telecommunications network fraud, further attention should be paid to the protection of the rights of persons whose defects have been frozen, and my country’s investigation and freezing system should be improved in order to achieve a balance between safeguarding public interests and protecting private interests. Investigation measures are closely related to citizens’ basic rights protected by the Constitution and laws, and should be strictly implemented in accordance with the law. The protection of the property rights of persons outside the case is not only reflected in the fact that their property may be included in the scope of execution during the execution process, but may also be manifested in the fact that when the execution of the property is not enough to pay off, the priority enjoyed by the person outside the case is not guaranteed, or the person outside the case obtains it in good faith. The property included in the scope of enforcement, etc. However, the protection provided by the existing laws is based on the general frozen persons, and there are some problems in protecting the persons who are frozen due to defects, which should be further improved.

(1) The safeguard approach of positive law

Judging from the process of judicial procedures, there are three main ways for the positive law to protect frozen persons: when the investigation freeze measures are implemented, legislation is to regulate the exercise of the investigative power and prohibit repeated freezing; For frozen property that is irrelevant to the case, the investigative agency should take the initiative to lift the freezing, and the frozen person can also appeal to lift the freezing; at the end of the judicial process, the frozen person who suffers losses can apply for state compensation.

1. No repeated freezing

The second paragraph of Article 144 of the Criminal Procedure Law stipulates the principle of prohibition of repeated freezing, which prohibits two or more investigative agencies from simultaneously implementing freezing measures against the same property of the same frozen person. The principle of prohibiting repeated freezing is a direct restriction on investigative power and freezing measures. Freezing is a temporary restriction on property rights. If the same property is subject to multiple freezing measures at the same time, then this is equivalent to that the property has been disguised in disguise before the end of the judicial process. If the final freezing measures should be lifted, the procedural complexity and lengthy time involved in the removal of multiple freezing measures will inevitably cause excessive damage to the frozen persons. 

2. Freeze properly

The “Criminal Procedure Law” does not clearly stipulate the principle of proper freezing, but it has already been reflected in the “Regulations on the Application of Seizure and Freezing Measures in Criminal Cases by Public Security Organs.” The “Regulations” clarified the connotation and mechanism of the proper freezing principle from two aspects: (1) Article 3 of the “Regulations” stipulates that property irrelevant to the case shall not be frozen; (2) Article 27 of the “Regulations” stipulates that, The funds shall not be frozen beyond the amount involved in the case.

3. Unfreeze

As mentioned earlier, freezing is a temporary restriction on property rights, which will be evaluated and adjusted by subsequent judicial procedures. If the conditions applicable to the freezing measures have disappeared, the freezing measures should be lifted. The lifting of the freezing measures can be divided into two situations: (1) The voluntary lifting as stipulated in Article 145 of the Criminal Procedure Law, that is, it is found in the judicial process that the frozen property has nothing to do with the case, and it should be lifted within three days; (2) Article 117 of the Criminal Procedure Law provides for the cancellation of the complaint, that is, if the frozen person and interested parties have not lifted the freezing measures that the investigative agency should lift, they can appeal to the agency.

4. State compensation

Frozen persons apply for state compensation for freezing measures. There are two situations: (1) The relevant state agencies and their staff as stipulated in Articles 4 and 18 of the National Compensation Law implement freezing measures in violation of the law; (2) The State The freezing measures or unfreezing measures stipulated in Article 36 of the Compensation Law cause loss of frozen property. Both of these situations are aimed at situations where illegal freezing causes property damage.

(2) Problems with existing guarantee mechanisms

1. (Un)Freeze discretion

The “Criminal Procedure Law” stipulates that the condition for investigative agencies to implement freezing measures is “according to the needs of investigating crimes”, and the condition for lifting the freezing measures is “after investigation has nothing to do with the case.” In essence, the legislation through these uncertain legal concepts gives investigative agencies the discretion to implement and lift freezing measures. On the one hand, for investigative agencies, the national function of combating telecommunications network fraud is naturally prior to avoiding excessive intervention in citizens’ property rights. Investigation agencies are more inclined to actively play the role of freezing measures in punishing telecommunications network fraud. On the other hand, although the frozen person does have nothing to do with the property case, if the criminal suspect is ultimately determined to be a criminal, lifting the freeze does not rule out the possibility of the frozen person’s transfer of property, and the victim of telecommunications network fraud will not receive adequate relief. Therefore, in practice, investigative agencies generally take a conservative attitude towards lifting the freeze when the conditions are met, and the specific department heads and case handlers dare not take responsibility, and will not easily lift the freeze, so as to avoid the expansion of criminal harm. The enthusiasm of the investigative agency in implementing freezing measures and the conservative attitude of unfreezing means that it is difficult for people who have been frozen for telecommunications network fraud to defend their rights by appealing to remove them, unless there is a mechanism to dispel the concerns of investigative agencies.

2. Participation in the freezing process

“The criminal law enforcement notification procedure not only regulates criminal investigation and litigation activities and protects the legitimate rights and interests of citizens, but also strengthens the protection of human rights, thereby promoting the sound and perfection of the socialist legal system.” However, there are gaps in the regulation of freezing measures in the criminal law enforcement notification procedure. Judging from the “Criminal Procedure Law”, “Provisions on the Application of Seizure and Freezing Measures by Public Security Organs in Handling Criminal Cases”, “Procedures on Procedures for Handling Criminal Cases by Public Security Organs” and other legal norms, the setting of freezing procedures unilaterally emphasizes the efficiency of freezing measures and ignores Freeze the person’s right to participate in the program. This is mainly manifested in two aspects: First, the legislation provides for the tolerant obligation of the frozen person to cooperate, but it does not require the investigative agency to inform the frozen person of the decision to implement the freezing measure and the procedural rules on which it is based. Second, Article 117 of the Criminal Procedure Law provides for the dissolution of complaints, but its content is to supervise and investigate the responsibilities of the organs and their staff that should be dismissed but not dismissed, rather than explicitly granting the frozen persons to participate in the freezing process. And the right to express opinions and debate on the freezing measures. “my country’s traditional concept has a tendency to emphasize punishment rather than protection, and the protection of the property rights of persons outside the criminal case has not attracted sufficient attention. In legislation, it is reflected in the lack of adequate procedural participation rights for persons outside the case, and the channels for remedies for damage to the property rights of persons outside the case are not smooth. “. At present, the freezing procedure excludes the participation of the frozen person, let alone the issue of reciprocity in the freezing procedure. This obviously violates the modern rule of law concept of procedural justice, and is not conducive to the objective and reasonable content of the freezing measures, and it is also not conducive to the objective and reasonable content of the freezing measures. The frozen person sincerely accepts and is convinced of the freezing measures and the authority of the national legal system. 

3. The lack of compensation system

It is generally believed that state responsibility is mainly composed of state compensation responsibility and state compensation responsibility. Among them, state compensation responsibility is for damage caused by illegal acts of power, and state compensation is for damage caused by lawful acts of power. Affected by the tendency of statism, on the one hand, if the investigating agency implements a legal freezing, that is, if the investigating agency implements freezing measures on the property involved in the case and causes damage to the frozen person, whether it should be properly compensated, and the legislation is in a blank state; On the other hand, how to judge whether the investigative agency’s determination of the property involved in the case is correct is also more difficult for the frozen person to challenge. As a result, the chances of the defect being frozen have greatly increased. Different from the general frozen persons, the tolerable obligations assumed by the blemish frozen persons obviously exceed the general tolerance level. If there is no way to obtain compensation, it will violate substantive justice.

4. One-sided problem of compensation standard

According to the provisions of the National Compensation Law, the (un)frozen damages shall be restored to the original state as the principle. If the original state cannot be restored, the compensation shall be paid according to the degree of damage, and bank interest shall be paid for the same period. This compensation standard is obviously based on a system design centered on seizures and seizures, and is not suitable for freezing monetary properties, because there is basically no possibility of loss or loss of frozen monetary properties. In other words, if the freezing measures are indeed wrong, as long as the frozen currency property is returned, there is no room for compensation, because the bank interest in the same period belongs to the fruits of the frozen property, not an additional compensation. Or compensation. For persons frozen with defects, on the one hand, they did not participate in illegal and criminal activities and were restricted by property rights but were not compensated; on the other hand, the real value of currency property lies in circulation, and property rights restrictions greatly increase the indirect gains of currency property. Big obstacles, which further exposed the one-sidedness of compensation standards and the lack of compensation systems.

(3) Suggestions on improving my country’s freezing system

1. Clarify the status of the frozen person

For a long time, the criminal procedure system of our country has been influenced by nationalism, and the construction of the judicial system reflects the color of “centering on state power”. In the pursuit of the value of punishing crimes and protecting human rights, legislation, law enforcement, and justice always regard punishing crimes as a higher priority value choice. But in a modern country under the rule of law, the authority of the state power and legal system needs to rely on the recognition of citizens, “if the government does not take rights seriously, then it cannot take the law seriously.” The legal status and protection of rights and interests of frozen persons need to be systematically strengthened through legislation. This is not only one of the fundamental purposes of national legislation and criminal proceedings, but also a way to improve the law and reform the system.

Due to the differences between generally frozen persons and defected persons, it is obviously unfair to apply the same “freezing measures-tolerance obligation-restorative protection”. Therefore, it is necessary to adopt a legal amendment to clarify the status of the persons whose defects are frozen, and to re-construct the procedural mechanism of the freezing system on the basis of distinguishing between general persons and persons whose defects are frozen. However, it is worth noting that it is difficult to make systematic legal amendments to the freezing system. Therefore, there is still a long way to go through legislation to clarify the status of the person to be frozen. In this process, the procedures of the freezing system can be improved. Mechanism to gradually realize.

2. Improve the freezing objection system

The primary issue in improving my country’s freezing system is to respect and protect the procedural rights of the frozen persons. This article suggests that the Criminal Procedure Law should adopt amendments to clearly stipulate the freezing objection system: (1) When the investigative agency implements freezing measures, it should inform the frozen person of the decision, content and basis of the freezing measure, and inform the frozen person An objection can be filed to the investigative agency implementing the freezing measure within one month of the freezing measure; (2) For the objection raised by the frozen person, the investigating agency shall investigate within one week, and if the objection of the frozen person is established, the freezing measure shall be lifted or adjusted If the objection is not established, the frozen person shall be informed of the reason for rejecting the objection; (3) The frozen person can file a complaint with the higher-level investigative agency within one month after the objection is rejected.

The freezing objection system has the dual meaning of substantive and procedural. Physically, the frozen person can directly object to the freezing measures and challenge the legality and rationality of the freezing measures through facts and evidence. In terms of procedures, the frozen persons participated in the freezing procedures substantially, and the investigative agencies were debated on a reciprocal basis. The frozen persons’ right to express their opinions was respected, which was also conducive to increasing citizens’ confidence in judicial justice and national laws. .

Since freezing measures are widely used in the punishment of telecommunications network fraud, perfect the freezing objection system to ensure that people who are frozen in telecommunications network fraud are informed of the freezing information in a timely manner, and provide evidence to communicate with investigative agencies, which will help improve the legality and rationality of the freezing measures And correctness, to avoid and reduce the occurrence of blemishes being frozen.

3. Establish a freezing guarantee system

The investigative agency’s judgment in implementing freezing measures is that the frozen property belongs to the property involved in the case and may be used to return the victim and seize the treasury after subsequent legal trials. Therefore, the disposal and circulation of the property involved in the case should be restricted. For the frozen person, since the frozen property is mainly currency property, the impact of freezing is not only the temporary restriction of property rights, but also includes the indirect restriction of the frozen property that cannot realize the maximum value in circulation due to restrictions. Loss. In addition to the existing national compensation and compensation standards, there is also the problem that indirect losses are difficult to assess. The person who is frozen cannot obtain compensation or compensation for the indirect losses. Therefore, it is necessary to have a method that can guarantee the complete recovery of the property involved. A mechanism that protects frozen persons to maximize their value through trading activities.

This article believes that the concept and mechanism of preservation guarantee in civil litigation should be introduced to establish a freezing guarantee system. Freezing measures in criminal litigation and preservation measures in civil litigation have similar purposes and functions. In terms of purpose, they all take as the starting point to prevent the final judgment from being unable to be executed or the damage result expanded; in terms of function, they all have the effect of temporarily restricting property rights objectively. In civil litigation, “the main purpose of the preservation guarantee is to prevent the respondent from suffering losses due to the wrong ruling of preservation.” The criminal procedure should draw on the concept of preservation guarantee, establish a freezing preservation guarantee system, and allow the frozen person to Apply for adjustment or unfreeze while providing guarantee equivalent to the amount of frozen property. The establishment of a freezing guarantee system can not only realize the maximum value of the frozen property in full circulation, but also prevent the risks caused by errors in adjustment or unfreezing.

The establishment of a freezing guarantee system has important practical significance for the protection of persons who have been frozen for telecommunications network fraud. Under the circumstances that it is difficult to make systematic changes to the existing legislation and freezing system, exploring the implementation of the freezing guarantee system is an important way to protect people who are frozen due to defects. Compared with the general frozen persons, the deficiencies of the frozen persons’ property rights restrictions significantly exceed the general tolerance level. Allowing the frozen persons to apply for adjustment or unfreezing while providing guarantees can guarantee the effective operation of the investigative power and protect the criminal victims. A proper balance should be achieved between rights relief and promotion of the pursuit of maximizing the property rights of persons whose defects have been frozen.

Concluding remarks

The person who is frozen for the flaws in the telecommunications network fraud is not only the criminal or the responsible person, but the victim of the telecommunications network fraud. Investigative agencies implementing freezing measures in accordance with the law should focus on strengthening the respect and protection of persons whose defects are frozen. Citizens’ property freedom and personal freedom are the proper meanings of freedom, and personal freedom should not be emphasized over property freedom. Therefore, in cracking down on telecommunication network fraud crimes, there is no contradiction between the protection of the operation of investigative power and the protection of the rights and interests of persons whose defects have been frozen. This article believes that legislation should be adopted to clarify the legal status of persons frozen by defects, improve the procedures for investigation and freeze, and set up a remedy path after rights damages, protect the rights of information and appeal rights of persons frozen by defects, and realize the protection of the operation of the right of investigation and the protection of defects Organic unity between the rights and interests of the frozen persons.

Note:

1. Chen Yiliang: “Shockwave of Yiwu Foreign Trade “Frozen Card””, “China Economic Weekly”, Issue 8, 2021.

2. Li Jianjun and Xiong Jun: “Research on Investigation Countermeasures of Epidemic-related Telecom Network Fraud Criminal Cases”, “Journal of Jiangxi Police College”, Issue 5, 2020.

3. Fang Kanglan: “The Dilemma and Outlet of Basic-level Public Security Organs in Combating Telecom Network Fraud Crimes-Taking the Investigation of County C in Province H as a Sample”, “Journal of Hubei Police Officer Academy”, Issue 12, 2020.

4. Ma Zhonghong: “Research on the Difficulties and Countermeasures of New-type Cybercrime Investigation Represented by Telecom Fraud——Based on the Investigation in Province W”, “Journal of Chinese People’s Public Security University” 2018, Issue 3.

5. Zhan Jianhong and Zhang Wei: “Procedural Control of Investigative Power in my country”, “Legal Studies”, Issue 3, 2015.

6. Chen Yongsheng: “On the Nature and Characteristics of Investigative Power”, “Legal System and Social Development”, Issue 2, 2003.

7. Lin Yuxiong: “On Prosecutors”, Law Press, 2008 edition, p. 7.

8. Chen Weidong and Li Fenfei: “On the Judicial Control of Investigative Power”, “Politics and Law Forum” 2000, Issue 6.

9. Chen Weidong: “Improvement of the Procedures for Disposal of the Property Involved in the Case-An Analysis from the Perspective of Pretrial Procedures”, “Journal of Law”, Issue 3, 2020.

10. Jiang Tao: “Pursuing Rational Criminal and Penalty Mode: Implanting the Principle of Proportionality into Criminal Law Theory”, “Legal Science” 2013, Issue 1.

11. Ma Tingting: “Research on the Principle of Investigative Proportionality”, Southwest University of Political Science and Law, 2019 PhD thesis, p.1.

12. Jiang Hongzhen: “On the Principle of Proportionality-Judicial Evaluation of the Choice of Government Regulation Tools”, Law Press, 2010 Edition, pp. 38-41.

13. Wei Wei: “Two Meetings Cloud Interview|One phone set to get hundreds of thousands? National People’s Congress representative Feng Qiya suggested artificial intelligence to control telecommunications fraud”, published on Dahe.com: https://www.henandaily.cn/content/2021/0307/284763.html, last accessed on March 15, 2021.

14. Bian Jianlin: “On the Standardization of Public Security Criminal Law Enforcement”, “Eastern Methodology”, Issue 4, 2019.

15. Yuan Zhongmin: “Discussion on the Notification Procedure of Public Security Criminal Law Enforcement”, “Politics and Law Forum” 2003, Issue 1.

16. Ji Gefei: “Protection of the Rights of Outsiders in the Procedures for the Disposal of Property Involved in Criminal Cases”, “Journal of Law”, Issue 4, 2020.

17. Chen Ruihua: “Theory of Procedural Justice-An Analysis from the Perspective of Criminal Trials”, “Chinese and Foreign Law”, Issue 2, 1997.

18. Hans J. Wolf, Otto Bachoff, Rolf Stobel: “Administrative Law” (Volume 2), translated by Gao Jiawei, Commercial Press, 2014, p.344.

19. Lu Shilun and He Xiaorong: “The Decline of Nationalism and the Modernization of China’s Legal System”, “Law Science”, No. 3, 1999.

20. [America] Ronald Dworkin: Taking Rights Seriously, translated by Xin Chunying et al., China Encyclopedia Publishing House, 1998 edition, p.270.

21. Zhao Liqin: “Analysis and Discussion on Legal Issues of Litigation Preservation Guarantee-A Comment on the Preservation and Guarantee Models of Beijing Higher People’s Court and Jiangsu Provincial Higher People’s Court”, Issue 11, 2018.

Author of this article: Liu Lei

Master of Economic Law, Practicing Lawyer of Beijing Yingke (Shanghai) Law Firm, Advanced Model of Yingke Shanghai “New Decade. New Youth”, researcher of Institute of Artificial Intelligence and Rule of Law, Gansu University of Political Science and Law.

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

Academic: Lawyer Liu has published 2 academic papers, which were published in “Journal of Shanghai University of Political Science and Law” and “Social Science Trends”. One of them won the “First Prize of Guangxi Law Society”; The Rule of Law Journal published two papers; published more than 50 articles on the public account; compiled the book “Digital Currency and Law” (submitted).

Lawyer Liu was invited to give lectures for the “Gansu Provincial Lawyers Association Young Leading Talents”; invited to participate in the “First Digital Finance Rule of Law Forum” to make a speech; Lecture; was invited to give a keynote speech for Gansu University of Political Science and Law.

 

Posted by:CoinYuppie,Reprinted with attribution to:https://coinyuppie.com/viewpoint-on-the-protection-of-frozen-persons-in-telecommunications-network-fraud/
Coinyuppie is an open information publishing platform, all information provided is not related to the views and positions of coinyuppie, and does not constitute any investment and financial advice. Users are expected to carefully screen and prevent risks.

Like (0)
Donate Buy me a coffee Buy me a coffee
Previous 2021-08-24 13:49
Next 2021-08-24 14:14

Related articles