Article 205 of the Criminal Law stipulates four types of false openings: making false openings for others, making false openings for oneself, allowing others to make false openings for oneself, and introducing others to make false openings.
In judicial practice, there are mainly the following views on whether the introducer who introduces others has the status of an accomplice:
The first point of view: Article 205 of the Criminal Law stipulates that the four kinds of false opening acts are independent acts, and the introducer does not need to be attached to the issuer or the drawee, and can independently complete the implementation of the false crime, and the introducer and the issuer and the drawee are not joint crimes, and there is no premise for distinguishing between the principal and accessory. For example, in the (2017) Zhe Xing Zhong No. 296 Criminal Judgment, "according to the law, the act of introducing false invoices can be a separate crime, and it is not punished as a joint crime with the person who falsely issued the invoice or the person who received the invoice." Therefore, the appellant's argument that he was an accessory in a joint crime was inconsistent with the provisions of the law and could not be sustained, and was not admissible."
The second point of view: the Criminal Law stipulates that the introduction of others is an act of execution, so the introducer is a perpetrator in a joint crime, and the perpetrator should not be recognized as an accessory in a joint crime. For example, in the (2014) Min Xing Zhong Zi No. 249 Criminal Ruling, "as stipulated in the third paragraph of Article 205 of the Criminal Law of our country, 'introducing others to make false openings' is one of the four types of criminal acts, and the appellant is a perpetrator and cannot be found to be an accomplice in accordance with the law." This part of the argument and defense is not admissible."
The third point of view: if the introducer commits a joint crime with the issuer and the drawee, it should be judged whether the introducer is an accomplice based on the size of his role in the joint crime. If the introducer plays a secondary role, it can be found to be an accomplice, such as the (2022) Hu 0117 Xingchu No. 1094 Criminal Judgment "Defendant Zhu X introduced others to falsely *** and caused the state tax to be defrauded of more than 100 yuan, and his conduct has constituted the crime of false ***, and the defendant Zhu X played a secondary role in the joint crime, is an accomplice, and shall be punished in accordance with law"; If the introducer played a major role, it should not be found to be an accomplice, such as the (2023) Ning 04 Xingzhong No. 97 Criminal Ruling, "Appellant Wang X 1 took the initiative to introduce, transmit information, introduce others to open falsely in the course of criminal activities, and also provided relevant bank accounts and U shields for the transfer of funds, and actively participated in the specific operation of virtual ***, and his behavior was a key link in the completion of the crime he was involved in, and his position in the joint crime in this case was not a secondary or auxiliary role, It is not appropriate to be considered an accessory".
The author believes that the main reason for the above-mentioned judicial chaos lies in the impact of the legislative precedent on the theory of accessory to the general provisions of the Criminal Law under Article 205 of the Criminal Law.
Article 27 of the Criminal Law stipulates that "an accessory is an accomplice who plays a secondary or auxiliary role in a joint crime", and "playing a secondary role" means that the offender directly commits an act that constitutes an objective element of a specific crime, but plays a secondary role in the entire criminal activity, that is, a secondary perpetrator; "Playing an auxiliary role" means that the offender does not directly carry out the acts that constitute the objective elements of a specific crime, but only creates conditions to facilitate the commission of a joint crime, including physical and psychological assistance, that is, aiding the offender.
The act of introduction in the sense of the Criminal Law refers to the act of providing information, communicating and matchmaking, implicating and building bridges in a joint crime or criminal group, and prompting other criminal entities to realize their criminal intentions, and the act of introduction needs to rely on the implementation of the act, unless the act of introduction is independently defined as a crime, such as the crime of introducing ** and the crime of introducing bribes. The crime of false *** destroys complex objects, which not only infringes on the order of VAT invoice management, but also infringes on the national tax collection and management system, and the act of introduction itself does not directly infringe on any of the above objects. Article 205 of the Criminal Law stipulates that "false issuance for oneself" is a crime that can be carried out independently by the issuing party, such as issuing invoices for the purchase of agricultural products, which does not require an introducer; If the Criminal Law does not juxtapose "introducing others to make false openings" and the aforementioned three acts, the introducer can still be identified as an aider in accordance with the theory of joint crime in judicial practice. However, article 205 of the Criminal Law stipulates that the act of "introduction" is an act of assistance, and some judicial organs are reluctant to further distinguish whether the introducer is the main perpetrator or the secondary perpetrator, which leads to confusion in the identification of accomplices in introducing others.
In order to solve this dilemma and realize the principle of proportionality of criminal responsibility and punishment, the author believes that the status and role of the introducer in the joint crime should be accurately determined on the basis of determining that "introducing others to make false information" and "making false information for others" and "allowing others to make false information for themselves" establish a joint crime, and should not directly identify the introducer as the principal offender.
First of all, a joint crime is established between the introducer, the issuer and the drawee, and the introducer cannot independently carry out the criminal act. The act of introducing others to issue false invoices refers to the act of defrauding the state tax by the introducer knowing that there is no actual transaction of goods between the introducer and the invoicee, and the two parties finally issue false invoices through contact and communication with the introducer. Although "introducing others to make false bills" is stipulated as an act of implementation by the specific provisions of the Criminal Law, it does not have independent infringement of legal interests, and it is necessary to rely on whether there is a real transaction between the issuer and the drawee, and whether the deduction behavior of the drawee leads to the loss of national value-added tax to determine whether it constitutes a crime. If neither the issuer nor the drawee has committed an offence, neither should the introducer (unless the drawee has obtained it in good faith); If either the issuer or the drawee have committed a crime, then the subjective culpability of the introducer will be used to determine whether it has committed a crime.
Second, it is necessary to avoid the misunderstanding that the perpetrator is inevitably the principal offender. Where the perpetrator directly commits an act that constitutes an objective element of the crime, the principal and accessory offender is the division of the scope of responsibility of the accomplice participants after the crime is established, the criterion for whether the perpetrator is the principal offender is his role in the joint crime, and the "secondary role" provided for in article 27 of the General Provisions of the Criminal Law refers to the secondary perpetrator. Even in a situation where multiple persons are perpetrators and jointly lead to the occurrence of the crime, it is still possible to distinguish between the principal and accessory offenders, so as to ensure that the punishment is commensurate with the crime.
Finally, on the basis of determining the above-mentioned premises, the following factors can be comprehensively considered for the criteria for determining the accomplice who introduced another person's false opening: First, examine whether the introducer is the initiator of the offense. If the introducer takes the initiative to propose to the general taxpayer that false invoicing can make a profit and stimulate the criminal intent of the invoicing party or the invoicee, and then leads to the false invoicing behavior, such introducer should be deemed to be the principal offender and should not be an accomplice; If the introducer is only entrusted by the issuing party or the receiving party to find the drawee or the issuing party, then such an introducer should not be considered as the principal offender. Second, examine whether the introducer was involved in the design of the virtual opening mode. The mode of violent false opening is relatively simple, only the process of forging real transactions, public account payments, and private account repatriation, but some false opening models are relatively complex, such as changing bills and false opening, using the additional deduction policy to defraud taxes, etc., if the introducer participates in the design of the model, then such introducers are generally not recognized as accomplices; Third, it is necessary to examine whether the introducer has advanced funds, collected money through personal accounts, mailed invoices, etc. In order to earn referral fees, some introducers not only provide information and communicate with intermediaries, but also pay invoicing fees in advance, and even use their personal accounts for the return of funds, etc., at which time the introducer is generally not considered to be an accomplice; Fourth, review whether the introducer receives the referral fee. The introducer generally receives an introduction fee, and if the introduction fee is large and accounts for a relatively high proportion of the "ticket purchase fee" or even makes a career out of it, then it is not appropriate to be considered an accomplice. In short, if the act of the introducer exceeds the scope of an ordinary intermediary introducer, then the judicial authorities are cautious in determining his accessory. Of course, even if the introducer is not found to be an accomplice, it should be distinguished from the sentencing of the issuer and the drawee.
To sum up, the process of identifying an accomplice to the introducer in the false introduction of others shall follow the provisions of article 27 of the General Provisions of the Criminal Law, comprehensively consider the causal force and force of the act of introduction on the outcome of the crime, to determine whether he played a secondary role in the joint crime, and avoid treating the perpetrator as the principal offender, otherwise the principle of proportionality of criminal responsibility and punishment will be violated.
Author: Li Guichao, practicing lawyer at Beijing Yingke Law Firm.