The distinction between the crime of fraud and the crime of helping criminals with information and cybercrime activities

According to the traditional accomplice theory, the helper can be punished on the basis that he indirectly infringes the legal interests through the principal offender, so the behavior itself is criminal. The Criminal Law Amendment (9) adds Article 287 bis to the crime of helping information cybercriminals, and academic circles have discussed whether it has been aiding criminals or not. This article is the result of the abstraction and typology of information cybercrime assistance. It is impossible to exhaust the specific manifestations of this type of crime. This has led to considerable controversy regarding the specific application of cybercrime assistance in judicial practice. “Two Cards” Crimes Therefore, it is necessary to conduct research on the constitutional elements and social harm of the crime of helping information cybercriminals, with a view to accumulating judicial practical experience in order to better combat the provision of “Two Cards”.

Information cybercrime helps the legal construction of illegal behavior

Accomplice liability. Research on helping behavior must be placed in the context of joint crime to distinguish status and function. my country’s criminal law theory divides joint crimes into simple accomplices and complex accomplices. The former refers to the joint committing crimes that take joint executions, and the latter refers to the joint crimes in which the joint offenders have a certain division of labor. Instigator’s joint crime. The definition of helping criminal is the act of instigating or encouraging others to commit a crime or helping in the process of committing a crime. In joint crimes, the criminal behavior of the perpetrator is more easily realized by the instigator’s instigation and the help of the criminal. Therefore, the help behavior itself has a subordinate status and social harm, and has the nature of criminal violation and punishment.

Specifically, in the criminal activities of telecommunications fraud, Article 266 of the Criminal Law stipulates that the fraud of public and private property, and the larger amount constitutes the principal offender of the crime of fraud. The “Interpretation on Several Issues concerning the Specific Application of Law in Handling Criminal Cases of Fraud” will provide “two The “card” and other acts of assistance are clearly defined as accomplices in the crime of fraud; Article 4 of the “Opinions on Several Issues Concerning the Application of Law in the Handling of Criminal Cases such as Telecommunications and Network Fraud” of the First Two High Commissions reiterated the determination of the common crime of telecommunications fraud and subjective intent. It was emphasized that the act of “knowing that others have committed the crime of telecommunications network fraud and providing information cards, fund payment and settlement accounts, mobile phone cards, and communication tools” should be punished as a joint crime of fraud. The above normative framework clarifies that perpetrators who provide assistance for information cybercrime activities should apply the provisions of Article 27 of the Criminal Law on lenient punishment, and the punishment can be lightened, mitigated or even exempted.

Independent responsibility for accomplices. Generally speaking, the criminal law determines that the principal offenders have specific elements of the crime. Therefore, Article 287 bis provides the principal offenders from the three aspects of crimes, unit crimes, and imaginary concurrent offenders for the help behavior in information network crimes. The “coat”. Since then, the act of providing assistance for information cybercrime activities seems to have independent criminal constitutional elements and sentencing rules. So far, whether the act of assisting information cybercrime in the legal field belongs to the criminalization of an accomplice, and whether it is an absolute criminal or a relative criminal The discussion never stopped. Just as some people have argued, the criminal law separates the conviction of help in this type of crime. It is neither an absolute nor a relative normalization of a helper, but an independent sentencing, and no longer applies the principle of sentencing for accessory offenders in the General Principles of the Criminal Law.

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As mentioned above, as long as the conduct of information cybercrime meets the constitutive requirements and is illegal, and the illegality of the helping behavior and the conduct is causal, then as long as the helper is aware of the subjective state of the results of the conduct, the helping behavior can be established. crime. Therefore, the author believes that the essence of the crime of helping information cybercriminals is to determine the helping criminal as a legally fictitious “principal criminal”, because the behavior of “providing help” can only be subordinate and auxiliary in nature, and must be set. Contrasting and discussing on the premise of accomplices in information network crimes; in general, the act of assisting is subject to the punishment rules for accomplices, and when there are specific circumstances, that is, when the circumstances are “serious”, the special sentencing rules of Article 287 bis shall be applied.

Cybercrime itself has the characteristics of uncertain time and space, concealed criminal methods, and low cost of crime; infringement of legal interests is becoming increasingly complex, not only related to network security, but also threatening national financial security, intellectual property security, and citizen data privacy security. The reason why our country’s legislation separates the independent evaluation of the information cybercrime assistance behavior from the execution behavior and directly evaluates it as an infringement of legal interests is essentially a concern and response to the dynamic development of the black and gray industrial chain of cybercrime activities. Similarly, among the crimes related to cybercriminal activities, there are also the crime of spreading obscene materials for profit and the crime of spreading obscene materials, which can also be applied to acts that knowing that others spread obscene electronic information and still provide them with assistance in communication transmission, network storage, fee settlement, etc. .

The identification of “help” behavior in the crime of helping information cybercrime

The description of the indictment in Article 287 bis of the Criminal Law objectively determines the provision of “Internet access, server hosting, network storage, communication transmission and other technical support, or advertising promotion, payment and settlement” and other assistance behaviors by enumerating methods; Subjectively, the requester must “knowingly that others use the information network to commit crimes”, that is, there is the intention to help the principal offender. The author believes that the understanding of “helping” behavior should adhere to the principle of crime, responsibility and punishment, and grasp the following two aspects:

Identification of help behavior. As we all know, the helper in the accomplice theory can only exist on the basis of the crime of the principal offender. The objective aspect of this crime is the same as the helper of the joint crime but seems to be independent, because the help behavior and the practice of the assisted person have not yet been answered. The relationship between behaviors will substantially affect the illegality of the act of helping. For example, the factors contributing to the offense include whether the act of helping is illegal and the degree of illegality, etc. The modest nature of the criminal law also limits the abuse of this crime, that is, it must be acted before and after. It must reach the “serious circumstances” before it can rise to the level of punishment.

Help with deliberate identification. Knowing is the subjective element of deliberate crime. Article 14 of the Criminal Law uses “knowingly knowing that one’s own actions will cause consequences that endanger society” to define the content of the knowledge of criminal intentions, but the “knowledge” here must be based on what kind of “knowledge” in order to have the intention to help the principal offenders of information cybercrimes. There is no judicial explanation to further explain the need to answer questions such as whether it is necessary to help the perpetrator and the perpetrator of information cybercrime to have a common intention to contact, and whether there is a need for conspiracy within the scope of knowing.

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Comparing the Crime of Helping Information Cybercrime and Helping Offender in the Crime of Fraud

In the crime of telecommunications network fraud, those who know that others still provide assistance such as “two cards” and settlement of fees when they are engaged in telecommunications network fraud activities constitute accomplices in the crime of fraud. The co-criminals can commit fraud together or set different divisions of labor. To achieve the common purpose of collecting money by fraud, there is a certain causal relationship between the act of aiding and abetting and the harmful result, and the criminal responsibility of the fraud is shared with the principal offender of the fraud. There is a lot of overlap in the application of the crime of helping information cybercrime and the crime of fraud. For example, they have carried out assisting behaviors objectively, and both require knowing others to commit telecommunication fraud crimes on the subjective aspect, which leads to differences in the application of judicial practice. In this regard, the author believes that it is necessary to consider the key points to help the relatively independent identification of crimes of information network crimes:

Objectively restrictive judgments. One is that the content of the help is different. The act of helping information cybercrime activities belongs to the act of helping telecommunication network fraud activities, but the latter is not necessarily applicable to the crime of the former at the same time. The two are in the relationship of inclusion and inclusion. That is, the former is restricted to provide Internet access, server hosting, payment and settlement and other specific assistance behaviors, while for general assistance behaviors, such as providing venues, financial support, and other behaviors that do not reach the severity and decisive degree of technical support, It is more appropriate to be regarded as an accomplice in the crime of telecommunications network fraud. Second, the role of help is different. When the illegality of the above-mentioned help behavior itself is still uncertain, if there is a “one-to-many” situation, it is necessary to identify its contributory power to the telecommunications network fraud crime, that is, the severity of the plot. Only the help behavior is embodied in the form When it is an independent criminal act that is essentially an independent criminal act, the maximum three-year imprisonment can be considered as an independent statutory sentence; while the helper of the telecommunication network fraud crime only needs to consider the division of labor at the general level. Therefore, if the perpetrator provides “two cards” to multiple people, only when the use behavior reaches a decisive level and can substantively promote the occurrence of information network crimes, can it constitute the crime of helping information network crime activities.

The substantive judgment of the infringement of legal interests. First, the legal interests of the two infringements are obviously different. Although the act of helping information cybercrime is attached to the information cybercrime, the legal interest of the violation is independent: fraud is a crime of infringement of property, infringing on the ownership of public and private property, while the crime of helping information cybercrime is a crime of disturbing public order. Especially in the case of “one gang with many”, the infringement of legal interests is diversified, not only in the order of cyberspace management, but even spread to orders in unspecified areas such as drugs, obscene materials, money laundering, and intellectual property rights. In other words, the nature of the infringement consequences should be considered in consideration of the behavior of helping. When the act of providing “two cards” causes the infringement of specific legal interests, it may constitute two crimes at the same time; and the infringement of legal interests caused is abstract and In general, it is not suitable to be regarded as an accomplice in the crime of fraud. If the perpetrator provides the fraudster with “two cards” for payment and settlement, so that the fraudster successfully defrauds multiple sums of money, the perpetrator constitutes two crimes at the same time; but when the perpetrator is an illegal practitioner who sells the “two cards”, he knows others It is possible to use the “two cards” to commit cyber crimes and still sell the “two cards” to unspecified purchasers, causing some purchasers to commit fraudulent principal offenders. At this time, the behavior of the perpetrator has caused an abstract and general legal interest infringement. It broke through the degree of assistance and being assisted by the principal and ancillary. Secondly, there is a huge difference in sentencing rules between the two. The penalty discretion largely reflects the evaluation of the social risk of a certain crime. From the perspective of the maximum sentence, the act of providing “two cards” type of assistance may be recognized as different crimes, so the perpetrator will face a sentence of up to three years. There is a huge difference between fixed-term imprisonment and maximum life imprisonment, so the characterization of the act of helping must highlight the substantive evaluation of the violation of legal interests.

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Subjective and deliberate judgment of consistency. The first is the difference in knowing presumptions. When the perpetrator and the assisted person have a subjective conspiracy, if the perpetrator and the assisted person have conspired beforehand, it is an accomplice of the principal offender, and assisting afterwards constitutes a crime of covering up, concealing the proceeds of the crime or sheltering; when the perpetrator and the assisted person do not have subjective conspiracy When planning, it is necessary to make comprehensive judgments based on the cognitive level and ability of ordinary people and the rules of experience. Especially when the principal offender is not in the case, the criminal contact between the perpetrator and the assisted person cannot be found out. Under the premise that there is no confession, it is necessary to rely on different types of evidence to confirm each other and presume “knowingly”. According to the presumption method in Article 11 of the “Interpretation on Several Issues Concerning the Application of Law in Criminal Cases such as the Handling of Illegal Use of Information Networks and Helping Information Network Criminal Activities,” After several summons and investigations of the card sales records, they continued to sell and declared that “I only sell the numbers”. In this case, only the perpetrator’s subjective laissez-faire can be determined, and the crime of helping information cybercriminals is applicable. The second is the difference in sentencing rules. When the perpetrator and the person being helped constitute two crimes at the same time, the provisions of paragraph 3 shall be applied to imagine that a concurrent offender will be punished for a felony. For accomplices, this crime is applicable to the lesser punishment, and the more severer punishment is applicable. If the criminal intent cannot be found out or the perpetrator has only indirect and general intentions, he should be convicted and sentenced for the crime of helping information cybercriminals.

Author/ Translator: Jamie Kim
Bio: Jamie Kim is a technology journalist. Raised in Hong Kong and always vocal at heart. She aims to share her expertise with the readers at Kim is a Bitcoin maximalist who believes with unwavering conviction that Bitcoin is the only cryptocurrency – in fact, currency – worth caring about.