Case review
On February 1, 2021, after Yang learned the news that renting out bank cards could be profitable from Tian and Liu, he placed a Chinese bank card in his nameAn ICBC card;A CCB card was leased to Liu and Tian, and then Liu used Yang's mobile phone and identity information to register a Jiangsu Suning bank account as a backup account. Yang handed over the above-mentioned bank card and Alipay account to Liu and Tian to operate the "running score", and Yang made a profit of 5,000 yuan. Afterwards, Liu and Tian asked Yang to introduce others to provide bank cards to obtain intermediary fees. On February 5, 2022, Yang asked Wu Moumou to rent a ** bank card to "run points", and after he took Wu Moumou to meet Liu, Wu Moumou handed over one of his construction bank cards to Liu, and after Liu checked the card, he asked Wu Moumou to bind the construction card account to his mobile phone number to "run points". After Wu Moumou bound the CCB outlets, he handed over the bank card and mobile phone to Liu, and after Liu's "use" was over, he gave Yang 5,000 yuan, and asked Yang to settle and make a profit for Wu, and Yang gave all 5,000 yuan to Wu. On February 7, 2022, Yang provided one of his agricultural bank cards to Liu and Tian to "run points" and made a profit of 5,200 yuan. Yang's illegal profits totaled 10,200 yuan.
Q: How should Yang's behavior be characterized?
Answer: Yang clearly knew that others were using bank cards to carry out illegal and criminal activities, and in order to obtain illegal benefits, he rented out bank cards and Alipay accounts in his own name, and introduced others to rent ** bank cards, and provided payment and settlement assistance for others to use for telecommunications network fraud crimes, the circumstances were serious, and his behavior had violated the criminal law, constituting the crime of aiding information network criminal activities. The facts of the crime and the charges charged by the public prosecution are established. Yang introduced that Wu Moumou's rental of ** bank card was a joint crime, and Yang played an auxiliary role in the joint crime, and was an accessory, and truthfully confessed his crime after arriving at the case, and was given a lighter punishment in accordance with law;After the case is discovered, actively return all illegal gains, and give a lighter punishment as appropriate.
Legal analysis
The crime of aiding information network criminal activities (hereinafter referred to as the "crime of aiding trust") is one of the crimes added by the Criminal Law Amendment (IX) in 2015. With the popularization of the Internet, the common crime of information networks presents the characteristics of anonymization of subjects, concealment of behavior, lack of two-way communication and clear division of labor between subjects, etc., which have led to the phenomenon that only helpers can be arrested but not the main offenders in judicial practice. At present, the crime of aiding and trusting has become the third most prosecuted crime among all kinds of criminal offenses, second only to the crime of dangerous driving and theft.
"Knowing" is the subjective element of the crime of aiding and abetting, whether or not you know that others have committed crimes is the key factor in constituting the crime of aiding and trusting, and whether you subjectively know is not simply saying to the case-handling organ "I don't know if others have committed a crime" can prove ignorance, and the case-handling organ can infer that you know it based on your statement and the fact that you still carry out the relevant behavior, transaction**, or the way is obviously abnormal after being informed by the regulatory department. The crime of aiding and trusting is a catch-all crime, and the case-handling organs are faced with the inability to catch the principal offender who uses the information network to commit the crime, so the parties who commit the crime of aiding and trusting are strictly dealt with. The parties will also face the punishment of financial institutions, unable to apply for bank cards, keep a case record, unable to issue a certificate of no criminal record, and many other inconveniences, the professionalism of the criminal case is very high, and the family members are not qualified to intervene in the criminal case, it is recommended to consult a professional lawyer in time to better protect their legitimate rights and interests.
Letters of the law
Article 287-2 of the Criminal Law of the People's Republic of China.
Where it is clearly known that others are using information networks to commit crimes, and providing them with technical support such as internet access, server hosting, network storage, or communication transmission, or providing assistance such as advertising and promotion, payment and settlement, and the circumstances are serious, a sentence of up to three years imprisonment or short-term detention is to be given, and/or a fine. Where a unit commits the crime in the preceding paragraph, the unit is to be fined, and the directly responsible managers and other directly responsible personnel are to be punished in accordance with the provisions of the first paragraph. Where conduct in the preceding two paragraphs simultaneously constitutes other crimes, follow the provisions for the heavier punishment at trial and sentencing.
The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Illegal Use of Information Networks and Aiding Criminal Activities on Information Networks provides:
Article 11: In any of the following circumstances, it may be found that the perpetrator clearly knew that others were using information networks to commit crimes, except where there is evidence to the contrary:
1) Carrying out relevant conduct after being notified by the regulatory departments;
2) Failure to perform legally-prescribed management duties after receiving a report;
3) The transaction ** or the method is obviously abnormal;
4) Providing programs, tools, or other technical support or assistance specifically for use in violations or crimes;
5) Frequently employing measures such as covert surfing the internet, encrypting communications, or destroying data, or using false identities to evade regulation or investigation;
6) Providing technical support or assistance to others in evading regulation or investigation;
7) Other circumstances sufficient to determine that the perpetrator clearly knew.
Article 12: In any of the following circumstances, it shall be found that the "circumstances are serious" as provided for in paragraph 1 of Criminal Law article 287-2 where it is clearly known that others are using information networks to commit crimes, and providing assistance to them in committing crimes:
1) Providing assistance to three or more subjects;
2) Pay a settlement amount of more than 200,000 yuan;
3) Providing funds of 50,000 RMB or more through means such as advertising;
4) Unlawful gains of 10,000 yuan or more;
5) Having received an administrative punishment within the past two years for illegally using information networks, aiding information network criminal activities, or endangering the security of computer information systems, and again aiding information network criminal activities;
6) The crime committed by the person being helped causes serious consequences;
7) Other situations where the circumstances are serious.
Where the conduct provided for in the preceding paragraph is carried out, and it is truly impossible to verify whether the target of the assistance has reached the level of a crime due to objective constraints, but the total amount of the relevant amount reaches five times or more of the standards provided for in items (2) through (4) of the preceding paragraph, or causes especially serious consequences, the perpetrator shall be pursued for criminal responsibility for the crime of aiding information network criminal activities.
Article 13: Where the criminal conduct carried out by the target of assistance may be confirmed, but has not yet been brought into the case, has not been adjudicated in accordance with law, or has not been pursued for criminal responsibility in accordance with law for reasons such as not reaching the age of criminal responsibility, it does not impact the determination of the crime of aiding information network criminal activities.
Article 14: Where units carry out the crimes provided for in this interpretation, follow the standards for conviction and sentencing of the corresponding natural person crimes provided for in this interpretation, convict and punish the directly responsible managers and other directly responsible personnel, and give the unit a fine.
The author of this article is Fu Quanzhi of Beijing Zeda Law Firm.