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【Abstract】The governance of misdemeanors puts forward the governance requirements of lighter punishment. However, as a typical representative of misdemeanors, the crime of aiding information network criminal activities has problems in judicial practice, such as the low application rate of suspended sentences, the inconsistent application standards of suspended sentences, and the limited independent function of fines and sentences. In order to conform to the trend of lighter punishments, the following measures may be further adopted to standardize the application of criminal penalties for aiding information network criminal activities: Break the thinking of heavy punishments, establish scientific and clear standards for the application of suspended sentences, and expand the application of suspended sentences; activate the separately applicable function of the penalty; Clarify the standard for the amount of fines, and establish a discretionary standard of "illegal gains as the mainstay, supplemented by the settlement amount".
【Keywords】misdemeanor governance; the crime of aiding information network criminal activities; empirical analysis; Reprieve; Fine;
Under the guidance of the concept of positive criminal law, the criminal law of the mainland has actively participated in social governance in recent years, and has continuously expanded the criminal circle. In this process, criminal legislation has shown a clear tendency to "revitalize legislation", and many crimes with relatively minor harms have been added. Among them, the crime of aiding cybercriminal activities (hereinafter referred to as the crime of aiding trust) added by the Ninth Amendment to the Criminal Law is one of the typical misdemeanors. With the promulgation of relevant judicial interpretations and the launch of the campaign to crack down on the "two-card crime", the number of judicial precedents for aiding and abetting the crime of trusting has increased significantly since 2020, and reached the peak of growth in 2021. According to the "Special Report on Judicial Big Data on the Characteristics and Trends of Information Network Crimes" released by the Supreme People's Court, in 2021, about 140,000 defendants were involved in the crime of aiding and trusting nationwide, a year-on-year increase of 1,196.58% compared with 2020. Although the application of the crime of aiding and trusting has begun to decline steadily in the past two years, the number of precedents for the crime of aiding and trusting is still at a high level compared with before 2019. It has become an indisputable fact that there has been an upsurge in the application of the crime of aiding and abetting trust in the judiciary.
I. Reflection on the application of criminal punishment for the crime of aiding and abetting trust in the context of misdemeanor governance
(a)
Requirements for the application of the punishment for the crime of aiding and abetting trust under the management of misdemeanors: the punishment is lightened
"Light punishment is a historical necessity and is in line with the current development process of social democracy and civilization on the mainland." While actively criminalizing acts such as "payment and settlement, and providing technical support" to help information network criminal activities, it is necessary to pay attention to the lighter punishment of criminals who are guilty of aiding and abetting trust. This reflects the requirements of the overall construction, overall planning and coordination of the crime and criminal punishment system under the governance of misdemeanors, and is also in line with the characteristics of the crime of aiding and abetting the crime itself with low social harm. Because, whether it is at the level of illegality or responsibility, the crime of aiding and believing has lower objective harm and subjective malice than other cybercriminal activities.
On the one hand, from the perspective of illegality, the objective harmfulness of aiding and abetting crimes is significantly lower than that of other cybercriminal activities. Although this crime is independent from the joint crime and realizes the legalization of the aider, its essence is still to facilitate the predicate crime and create the conditions for the crime, and the act of aiding itself will not independently cause the result of infringement of legal interests. "When the principal offender has not yet started the crime, that is, has not caused a specific danger of infringing on the legal interests, let alone infringing on the legal interests, the aiding offender cannot be said to have infringed on the legal interests." In the case where the principal offender has not yet been committed, the crime of aiding and abetting trust alone is not harmful. Even if the principal offender has already committed it, the damage to the victim is indirect. Compared with cyber crimes that directly infringe on legal interests, such as using information networks to set up fraudulent websites, illegally intrude into computing systems, and destroy computer systems, the infringement of legal interests is significantly weaker.
On the other hand, from the perspective of responsibility, the criminals who aid and believe in the crime do not subjectively have significant antisocial malice. Most of the offenders are young, more than half are between the ages of 18 and 28. They are still young in social qualifications and do not realize the seriousness of the illegality of lending, so they are often tempted by some small profits to lend bank cards to others. In addition, the intent to connect the offender of the crime of aiding and abetting the crime with the predicate crime is not strong compared with that of other joint crimes. The perpetrator subjectively did not actively participate in the subsequent more harmful crime, and in fact did not have a good understanding of the specific content and form of the predicate crime, let alone participate in the distribution of the proceeds of the subsequent crime.
Therefore, even though the Criminal Law has limited the statutory sentence for aiding and abetting to less than three years, the wrongfulness and culpability of the crime are significantly lower than those for other cyber misdemeanors with a statutory sentence of less than three years. In judicial practice, when applying criminal punishments, the concept of lighter punishments should be upheld, and further lighter punishments should be imposed within the legally-prescribed punishment range.
(b)
A realistic overview of the application of the punishment for the crime of aiding and trusting under the governance of misdemeanors: the trend of abnormally heavy sentencing
However, judging from the judicial practice of aiding and abetting the crime of trusting in the mainland, the concept of lenient punishment has not been well implemented. In trials, the application rate of suspended sentences is low, and the number of sentences awarded for a single fine is small. Numerous empirical data on the crime of aiding and trusting show that the punishment for the crime of aiding and trusting is not an isolated case, but a universal judicial phenomenon. According to the 2022 National Court Judicial Statistics Bulletin, 24.08% of all defendants were sentenced to suspended sentences in the first instance of cases of obstructing the order of social management. As a misdemeanor among the crimes of obstructing the order of social management, the proportion of suspended sentences for the crime of aiding and believing is only 15.45%, which is far lower than the overall level. For another example, some scholars conducted empirical research on the application of fines for the crime of aiding and trusting, and retrieved a total of 1,119 judgments (2022) for the crime of aiding and trusting on the magic weapon of Peking University.
In view of this, the author intends to conduct an empirical investigation on the current judicial application of criminal punishments, take this as a starting point, explore the specific positions and attitudes of the judiciary in dealing with the crime of aiding and abetting, summarize the problems and dilemmas existing in the application of criminal punishments in practice, and try to put forward solutions, in order to promote the improvement of the process of mitigating criminal punishments in mainland China and the construction of a misdemeanor governance system.
II. An Empirical Analysis of the Crime of Aiding and Trusting in the Context of Misdemeanor Governance: The Deviation between Judicial Sentencing and the "Requirement of Mitigated Punishment".
The author selects the judicial precedents of X city in H province as the research object, and searches for "the crime of aiding information network criminal activities", "X city in H province", and "judgment" as the qualifying conditions on the judgment document website. At the same time, based on the consideration of timeliness, the author only selects judgments in 2022 and 2023. As a result, a total of 143 judgment documents were obtained, and after screening the contents, 153 defendants were finally identified as the subjects of the study. By sorting out the contents of the sample verdict, the analysis data on the application of the penalty for the crime of aiding trust are as follows:
(a)
Application of suspended sentences for the crime of aiding and abetting: The application rate is low and the standards are not uniform
1. The rate of application of probation is low
Of the 153 defendants, only 18 were given suspended sentences in the discretionary sentence, while the rest were actually sentenced to imprisonment (fixed-term imprisonment or criminal detention), with a probation application rate of only 12 per cent. This shows that in the judicial trial of the crime of aiding and abetting, the judge is still inclined to sentence the defendant to actual punishment and is more restrained in the application of probation. This is in line with the phenomenon that mainland judicial practice has long relied on the application of custodial sentences. "From 2011 to 2019, the proportion of convicted people in mainland China was two-thirds of the number of convictions, and the rate of non-custodial sentences was only one-third. The rate of custodial sentences is significantly higher than that of non-custodial sentences". The excessive reliance on custodial sentences in the application of justice is in stark contrast to the trend of miscriminalization. The reason for this is that it is difficult for the mainland judiciary to break out of the inertia of the thinking of heavy punishment.
2. The standards for the application of suspended sentences are not uniform
The author attempts to explore the basis for the judgment of the judge in X city on the issue of the application of probation, and find out the sentencing factors that specifically affect the application of probation. The specific analysis method was to use a binary logistic regression model, with "whether to apply probation" as the dependent variable and "sentencing factors that may affect probation" as the independent variable, and the independent variables included eight independent variables: criminal record (excluding recidivism), meritorious service, voluntary surrender, confession, compensation for victims, restitution and return of stolen goods, bank card settlement amount and illegal gains. In the SPSS software, the regression model of the judgments in 2022 and 2023 in X city was constructed, and the following table was finally obtained:
(Table 1)
(Table 2)
(Table 3)
Analyzing the data of the above regression models, it can be found that, firstly, according to the Horsmer-Lemeshaw test in Table 3, the significance of the regression model is 1 and 0.494, respectively, indicating that the conclusions of Table 1 and Table 2 of the binary logistic regression model are reliable. Secondly, from Table 1, the significance of the independent variables in the regression model was significantly greater than 0.05, indicating that the six factors of criminal record, meritorious service, voluntary surrender, confession, compensation to the victim, and restitution and restitution of stolen goods had no significant impact on the application of probation by the judges in X city. Similarly, the settlement amount and the illegal gains of the convict in Table 2 also have no significant impact on the application of probation.
From the above data, it can be seen that the judicial trial in the city has not formed a unified and clear standard for the application of probation, that is, the role played by factors such as criminal record, meritorious service, voluntary surrender, confession, compensation for victims, restitution and return of stolen goods, settlement amount, and illegal gains in whether to apply probation, judges have not formed a relatively unanimous opinion. Whether or not a judge applies a suspended sentence and the weighting of the standard are arbitrary. This can also be glimpsed in the study of specific cases, and the phenomenon of different judgments in the same case is prominent. For example, in the case of Peng Mougen, the judge said in the judgment that "according to the circumstances of the crime, it is not appropriate to apply a suspended sentence to the defendant". However, the verdict did not give a clear standard for why the suspended sentence was not applied, and only used the vague expression of the circumstances of the crime to mention it in one stroke. For another example, judges who also use the amount of bank card payment and settlement as the main basis for applying a suspended sentence have different standards when determining how much payment and settlement amount is necessary to meet the seriousness of the crime. Taking Zhang's case and Yang's case as a comparison, the criminals in both cases have sentencing circumstances of voluntary surrender (confession), admission of guilt and acceptance of punishment, and restitution, and only differences are made in the amount of illegal gains and settlements. In Zhang's case, the verdict clearly stated that "because the amount of money involved in the defendant's payment and settlement assistance was relatively large, the defender's defense opinion that the circumstances of the crime were relatively minor and recommended that the defendant be sentenced to a suspended sentence was not accepted by this court." It can be seen that the judge in the Zhang Wang case believed that the payment and settlement amount (2.18 million) was too large, and then ruled out the application of probation on the basis of the seriousness of the crime. However, on the contrary, the settlement amount involved in Yang's case was 2.62 million, and the illegal gains were more than those in Zhangwang's case, and the criminal circumstances and social harm in Yang's case were more serious than Zhang's. However, the judge in Yang's case applied a suspended sentence to him.
| _ | Pay the settlement amount | Unlawful gains | Whether a suspended sentence applies |
| Zhang's case | 2.18 million | $0 | not |
| Yang's case | 2.65 million | 2600 yuan | be |
(Table 4)
(b)
Application of fines for aiding and abetting crimes: limited independent function
1. The application rate of individual fines is low
Judging from the application of fines and punishments, all defendants for the crime of aiding and abetting trust were sentenced to fines, but on the basis of the main sentence, the convicts were also fined. The application rate of a single penalty is 0. Even if the scope of the sample was expanded to 2020 (the earliest year in the city to have a judgment on aiding and abetting), only two judgments imposed fines on the defendants. It can be seen that although the law gives judicial personnel the right to choose to impose a concurrent or single fine, the vast majority of judges in City X still choose to impose a fine at the same time as the main sentence. This shows that fines are still subordinate to the main punishment and do not have an independent status, and the punishment model applied separately has not yet been fully developed in practice.
2. Factors to be considered in the amount of fines: The impact of custodial sentences on the amount of fines is polarized
The following two conclusions can be drawn by constructing a regression model for the amount of fines and analyzing the sentencing factors that affect the amount of fines. (1) The four sentencing circumstances of unlawful gains, settlement amounts, whether to compensate victims, and whether to return stolen goods have no significant impact on the amount of fines, and only the custodial sentence has an impact on the amount of fines. (2) Although the custodial sentence has an impact on the amount of the fine, the judge presents both positive and negative discretionary thinking in the specific judgment process. The specific analysis is as follows:
When constructing a multivariate logistic regression model with the amount of fine as the dependent variable, it is necessary to classify the amount of fine. Thus, the following bar chart can be obtained by counting the amount of fines imposed on all defendants:
(Table 5)
As can be seen from the above table, the amount of fines imposed for the crime of aiding and abetting trust is distributed in the range of 2,000 to 20,000 yuan, and the number of fines in the 5,000 level is the largest, accounting for 57.7% of the total. Considering the size and amount of each sample, when the amount of fine was used as the dependent variable for regression analysis, the fine penalty was divided into four levels based on 5,000 yuan, the first level was less than 5,000 (2k, 3k, 4k), the second level was 5,000 (5k), the third level was greater than 5,000 and less than 10,000 (6k, 7k, 8k), and the fourth level was more than 10,000 yuan (10k, 20k). Based on this, a multivariate logistic regression analysis was carried out to determine whether the above-mentioned sentencing circumstances had a significant impact on the amount of fines awarded by the judge, including the illegal gains, the settlement amount, whether the victim was compensated, whether the stolen goods were returned, and the prison sentence was taken as independent variables. The multiple regression model showed that the significance of the four independent variables, namely, illegal gains, settlement amount, whether to compensate the victims, and whether to return the stolen goods, was significantly greater than 0.05, indicating that these four factors had no significant impact on the amount of fines.
In the end, only the element of custodial sentence remained, which was set at 0 for probation. A multivariate logistic regression model was established with the custodial sentence as the independent variable and the amount of fine as the dependent variable, and the following table was obtained:
(Table 6)
(Table 7)
As can be seen from Table 6 above, the significance of the likelihood ratio test of multivariate logistic is <0.01. This indicates that the establishment of the model is effective, and the conclusions in Table 7 of the multiple logistic regression model are reliable. Based on this, the significance of the custodial sentence in Table 7 was analyzed, and the significance of the custodial sentence was <0.01, which was less than 0.05. It shows that the length of the custodial sentence does have a significant impact on the size of the fine. In other words, the judge will take into account the length of the custodial sentence when determining the specific amount of the fine.
However, the impact of imprisonment sentences on the amount of fines requires further analysis. Specifically, it is necessary to calculate the amount of fines from the first to the fourth level separately, and calculate the average sentence of the defendants in each category. After statistical analysis, the following chart is obtained:
(Table 8)
From this table, it can be seen that the penalty of fine and the length of sentence are not strictly positive and linear relationship. There is indeed a positive relationship between the length of the sentence and the amount of the fine, and the longer the sentence, the higher the amount of the fine. However, when the amount of fines is from the first to the second, there is a negative relationship between the average sentence and the amount of fines. The average sentence value of the first band is higher than that of the second bracket and even exceeds the sentence of the fourth band fine. Therefore, the relationship between the two presents an obvious V-shape, and the fine of 5,000 yuan is used as the reference point. Fines of less than $5,000 or more have resulted in an upward trend in the number of custodial sentences imposed. As to why $5,000 is the cut-off point, the possible explanation for this is that since the number of fines of $5,000 is significantly higher than that of other types of judgments, it can be inferred that the amount of the $5,000 fine falls under the unwritten agreement of the city's judicial adjudication. There was a tacit understanding among the judges that a fine of $5,000 was the safest course of action. Therefore, when some judges want to reduce or increase the amount of fines on this basis, there must be some exceptions that go beyond common sense in the facts of the case, thus forming two ways of adjudicating the case. Some judges held that when a convict imposes a higher sentence of detention, it means that the circumstances of his crime are more serious, and the amount of the fine should be increased accordingly. On the other hand, some judges held that custodial sentences and fines were complementary punishments. When the custodial sentence is high, there is no need to impose a high amount of fines on the offender. The two diametrically opposed approaches to the verdict have led to a "V" similar relationship between the amount of the fine and the length of the sentence in the city's judgment. At the same time, it also shows that although the city judge does take the sentence as a factor to consider in determining the amount of fine, there is no consensus among them on the question of how the sentence affects the amount of the fine, and the judgment of the amount of the fine presents two opposing discretionary thinking.
III. Standardization of the application of criminal punishments for aiding and abetting trust in the context of misdemeanor governance
(a)
Increase the rate of probation
In recent years, as the concept of human rights protection has been deeply rooted in the hearts of the people, non-custodial sentences have become the mainstream trend in the application of criminal punishments. As a misdemeanor with low social harm, the crime of aiding and believing in a crime that reduces the prison sentence and then expands the application of suspended sentences is also the proper meaning of light punishment for misdemeanors and proportionate punishment. Specifically, to expand the application of suspended sentences, first, it is necessary to break the long-term reliance on heavy punishment thinking. Second, it is necessary to establish scientific and clear standards for the application of suspended sentences.
1. Break the long-term reliance on heavy punishment mentality
With the crackdown on the two-card crime in full swing, the conviction rate of the crime of aiding and abetting in judicial trials has increased significantly. However, strict criminalization does not equal harsh sentencing. Judges should not apply the thinking of strict criminalization to sentencing, and then impose unusually heavy sentences. It is true that the crime of aiding and abetting is at the initial stage of the entire criminal chain and plays an important role in inducing subsequent crimes such as online fraud. Therefore, it is necessary to implement the policy of "cracking down early and cracking down on small crimes" in the field of cybercrime, and to cut off crimes at the embryonic stage. However, the severe crackdown on the crime of aiding and trusting should be concentrated at the level of criminalization, and the high incidence of card borrowing should be curbed through criminalization. However, at the sentencing level, it is necessary to give full consideration to the characteristics of the crime, such as the low social harm and weak anti-personality characteristics, and give a lenient punishment to the offender who is guilty of aiding and abetting the crime, so as to avoid excessive interference by criminal law sanctions on the offender.
Therefore, judges should promptly change the thinking of the traditional crime of heavy punishment. We cannot stick to the old ways and blindly implement the strike-hard policy without distinction. As one scholar has said, the age of misdemeanors has arrived. Since the criminalization of misdemeanor has become an irreversible trend in criminal law, the existing criminal punishment system and ideological concepts must be adjusted and changed in a timely manner. Judges should fully understand the "light" nature of misdemeanors, and recognize the characteristics of the crime of aiding and abetting the crime of aiding and abetting that the circumstances are minor and the subjective malice is small, so as to break the habitual trial thinking of imposing heavy sentences, and consider applying suspended sentences to crimes as much as possible.
2. Establish scientific and clear standards for the application of suspended sentences
The vagueness of the criteria for the application of suspended sentences is also one of the reasons why judges are afraid to impose suspended sentences. According to the conditions for the application of suspended sentences as stipulated in article 72 of the Criminal Law, the declaration of a suspended sentence shall meet all four conditions at the same time. Specifically, in the crime of aiding and abetting, the judge found that the circumstances of the crime were minor, and the main consideration was the illegal gains of the offender and the amount of bank card settlement. However, what is the standard for the value of illegal gains and settlement amount to exceed the level of "minor criminal circumstances" in probation? There is no uniform standard. This can also be reflected in the sample precedent of X City, for example, the same settlement amount of 2 million, some judges believe that the amount is too large and does not belong to the light circumstances of the crime. However, some judges have applied suspended sentences to offenders in similar circumstances. Second, how can it be accurately predicted that the application of probation to offenders will not have a negative impact on the community in which they live? This can only be proved by the judge's empirical logic and free will, but this unknown assessment also makes it more difficult to apply probation. In addition, probation can also involve other residents of the offender's community. Factors such as residents' recognition of the judge's judgment and the potential risk of the offender endangering society for the second time will increase the pressure on the judge to apply probation, making the judge cautious when using probation. In the end, only probation was applied to obviously minor circumstances, thus greatly reducing the scope for the application of probation.
It can be seen that the establishment of scientific and clear standards for the application of probation and the promotion of quantitative and specialized evaluation standards for probation play an important role in the expansion of the application of probation. The author believes that the standard for the application of probation in the crime of aiding and abetting trust should focus on the preventive factor, supplemented by the doctrine of retribution. "Since the Criminal Law restricts the term of imprisonment to be applied to probation by "criminal detention and fixed-term imprisonment of less than three years", which has taken into account the consideration of retribution, the substantive conditions for probation should only consider the precautionary factor." The crime of aiding and abetting trust is to be sentenced to up to 3 years imprisonment or short-term detention in accordance with law, so when applying a suspended sentence, there is no need to examine the factors of retribution, and factors that reflect the circumstances of the crime, such as the amount of payment and settlement, the amount of unlawful gains, etc., are not considered. Instead, emphasis should be placed on considering the factors that reflect the preventive sentencing, that is, whether the convict voluntarily returned the stolen goods, whether he confessed or surrendered voluntarily, whether he made meritorious contributions, and whether he had a criminal record. However, judging from the precedent sample in City X above, judges often pay too much attention to the settlement amount, and lenient sentencing circumstances such as confession or voluntary surrender and plea of guilt and acceptance of punishment do not attract sufficient attention from judicial discretion. It is true that with the gradual advancement of the plea leniency system in judicial practice, more and more criminals have the sentencing circumstances of admitting guilt and accepting punishment, surrendering voluntarily or confessing. Among the 153 defendants in X City, the proportion of those who pleaded guilty and accepted punishment and surrendered (confessed) reached more than 99%. However, the universalization of guilty pleas does not negate the importance of this sentencing circumstance, and judges cannot ignore its role in promoting the application of probation. Otherwise, the plea system will be reduced to a dead letter, unable to function in reality.
In short, it is necessary to construct a judgment standard that focuses on prevention and supplemented by retribution, focusing on preventive sentencing circumstances such as restitution and restitution of stolen goods, confession or voluntary surrender, no criminal record, and admitting guilt and accepting punishment, so as to give full play to the main role of preventive sentencing circumstances in promoting the application of suspended sentences.
(b)
Activate the independent application of fines
According to the above-mentioned empirical analysis of City X, the judge mainly relied on the length of the custodial sentence when determining the amount of the fine for the crime of aiding and abetting. This is consistent with the overall trend in judicial practice in judging the amount of fines. There are two formulas for discretionary fines in mainland judicial practice departments, one is the formula for free punishment and the other is the formula for the amount of crime. Because the liberal punishment formula is more concise, it is often applied more preferentially in practice. However, the crux of the issue is not whether the sentence is used as the criterion, but the logic behind the judgment of the judge of City X is completely opposite, although the judge of X City uses the sentence as the criterion for judging the amount of the fine. Present two completely different thinking logics, both positive and negative. According to the general situation, there should be a positive proportional relationship between the length of the sentence and the amount of the fine, that is, the longer the free sentence, the higher the corresponding amount of fine. This is because the amount of fines and the length of the sentence are a comprehensive reflection of factors such as the social harmfulness of the offender and the possibility of recidivism. However, if a convict is sentenced to a higher liberal sentence and then imposed a higher fine, there is a risk that the punishment will be too severe, and it violates the requirement of a lighter punishment for the crime of aiding and abetting. Perhaps this is also the consideration of the judges who hold opposing views, which is why the amount of the fine is reduced when the sentence of liberty is higher. However, there is also a problem in this way, that is, the negative correlation between the sentence and the fine will violate the normal logic of sentencing, that is, both are the embodiment of the severity of the offender's personal danger. As a result, it seems that none of the above thinking paths can be perfected, and the relationship between fines and sentences is in a dilemma.
However, the above thinking is carried out under the premise of the main punishment and the fine, and this is the crux of the dilemma. If the fine is separated from the status of a vassal punishment, the above dilemma can be solved. Affirming the independent function of fines means expanding the proportion of individual fines or actively exploring the system of fines. At this time, the positioning of fines and sentences has been transformed into an alternative means of free punishment, and from the perspective of sentencing logic, there is no longer a positive relationship with the sentence. At the same time, since fines can be used independently, there is no longer a need to be bound to the main punishment, and the punishment of criminals has become lighter. Therefore, by activating the independent application function of fines, the dilemma of being solved has been resolved.
In fact, fines alone have significant advantages in terms of both deterrence and prevention. From the perspective of deterrent effect, most of the defendants in the crime of aiding information network criminal activities are driven by interests and lend their bank cards and phone cards to others. The imposition of fines on them to deprive them of their economic benefits and prevent them from taking advantage of them financially is precisely a precise blow to the sore spot of their pursuit of interests. It can be seen that the psychological deterrence applied to fines is the most direct, which can have a good effect on sanctions and prevent criminals from violating the red line of the law again for the sake of profit; From the perspective of the effect of prevention, compared with custodial sentences, fines alone have more obvious advantages in terms of prevention cost and prevention effect. On the one hand, from the perspective of the cost of prevention, the subjective malice and personal danger of the perpetrator are small, and there is no need to invest more in putting the offender in prison, and allowing him to carry out his daily activities will not cause chaos to the social order. On the other hand, from the perspective of the effect of prevention, fines can effectively prevent criminals from reoffending, and their independent application effect even exceeds that of free sentences or even suspended sentences. An empirical study in the United States shows that "the recidivism rate after receiving a fine is lower than that of a suspended sentence, whether it is a first-time offender or a repeat offender".
It can be seen that in the context of misdemeanor governance in mainland China, activating the independent function of fines and punishments is of indispensable significance for promoting the leniency of punishment for aiding and trusting crimes and giving full play to the special prevention of criminal punishments. In fact, many countries outside the region attach importance to the function of single fines, and even in countries such as Italy, which provide for the largest number of combined fines in their legislation, the amount of single fines applied in the judiciary is much greater than that of combined fines. On the other hand, in the mainland, there is still a lot of room for judicial application of fines alone, and in practice, it is necessary to pay attention to the application of the independent function of fines.
(c)
Clarify the criteria for judging the amount of fines
The affirmation of the independent function of fines raises a new question. In other words, the discretionary formula for fines based on free sentences can no longer be applied when only fines, so how to determine the criteria for determining the amount of fines? The author advocates that the standard for judging fines and penalties should be determined based on unlawful gains, supplemented by the settlement amount. "In principle, the amount of fines for economic crimes shall be determined on the basis of the amount of the perpetrator's unlawful gains. Compared with the amount of illegal business operations and the amount of money laundering, the amount of illegal gains can best reflect the objective harmfulness and subjective malice of the criminal act."
First, it is not appropriate to use the settlement amount as a decisive circumstance in determining the amount of the fine. In practice, a considerable number of judges tend to determine the amount of fines for aiding and abetting the crime based on the amount of the settlement. For example, in the "Luo X Case", the defendant Luo X lent a bank card to his cousin out of personal relationships, although the total amount of the crime on the card was 30 million yuan, but Luo only made a profit of 400 yuan, and after the incident, Li took the initiative to surrender and admitted guilt with a good attitude, but in the end, the court sentenced Li to a fine of up to 20,000 yuan.
However, in reality, the settlement amount is often very high, and if this is used as a basis, the penalty will be generally applied excessively, which will increase the burden on the defendant. The sample data of the precedents in X City shows that in most cases of aiding and trusting, the payment and settlement amount of bank cards far exceeds the threshold of 200,000 yuan for serious circumstances stipulated in Article 12 of the judicial interpretation of aiding and trusting. Specifically, 95% of the cases paid more than 200,000 yuan, of which 65% of the cases settled more than 1 million yuan; In terms of the amount of illegal gains, most of the defendants are far below the standard of 10,000 yuan in the judicial interpretation, and only 10% of the criminals have more than 10,000 yuan in illegal gains. This two-level difference between the amount of illegal gains and the amount of settlement shows that, on the one hand, the generally low level of illegal gains reflects the requirement of light sentences for criminals. It is not conducive to the protection of human rights if high fines are generally imposed on criminals based on high settlements. On the other hand, the high amount of settlement turnover does not necessarily indicate that the offender is in serious personal danger and has the possibility of recidivism. First of all, in the current era of fast and fast frequency of online payment, payment and settlement are not difficult to achieve. Once the loaned bank card is controlled by upstream criminals, a large amount of turnover can be transferred in a short period of time. Second, because the perpetrator did not specifically participate in the subsequent criminal conduct, and lacked understanding of the specific nature and content of the subsequent crime. It can be said that the actor is out of control of the bank card when he lends it, and it is not under his actual control how much of the settlement amount is transferred to the card. Thirdly, compared with other accomplices, the offender of aiding and abetting the crime lacks close contact with the predicate crime and the behavior of helping each other. In practice, many predicate offenders lose contact after borrowing a bank card, evading the promise of remuneration agreed in advance. It can be seen that many predicate criminals do not regard the perpetrators of the crime as accomplices, but only as a tool to exploit. At this time, it is not appropriate to determine the settlement amount that reflects the severity of the predicate crime as the main criterion for judging the application of the punishment for the crime of aiding and abetting. To sum up, the blessing of science and technology has made it easier to transfer a large amount of money, and it is difficult for the perpetrator to exert actual influence in it, and at the same time, the settlement amount mainly reflects the criminality of the upstream criminal. There is no close connection between the perpetrator and the perpetrator. Therefore, the payment and settlement amount cannot accurately reflect the personal danger of the offender and the possibility of recidivism, and it is used as the main basis for the discretion of the amount of fine, and the accurate evaluation of the criminal punishment cannot be realized.
Second, compared with the settlement amount, illegal gains can better reflect the seriousness of the criminal's crime and the necessity of prevention. Many of the criminals who are guilty of aiding and believing are low-income groups with low education level, and at first they only lent bank cards and mobile phone cards for small profits. In addition, most criminals do not have a strong understanding of the social harmfulness of their lending behavior, and do not realize that their behavior will touch the crime. This is also evidenced by the fact that the amount of remuneration pursued by criminals is generally low. In many cases, the offender only helped out of favor and did not receive any remuneration. For example, in the case of Xie Mouyu, the defendant Xie Mouyu only refused because of his bad feelings, so he gave his bank card to his newly met friend "Hui Yanzi" for money transfer and money laundering, and did not collect any fees afterwards. These facts show that the subjective viciousness of the perpetrators of aiding and believing in crimes is very low, and the antisocial personality is weak. In this case, it is not necessary to impose an excessively high penalty on them, but should be judged mainly on the basis of the lower illegal gains, and a lower amount of fines should also be imposed in those cases where the settlement amount is high and the illegal gains are low, so as to achieve a lighter application of the criminal punishment.
IV. Conclusion
With the continuous expansion of the criminal circle, how to achieve the lighter punishment of misdemeanors has become an important proposition in the current misdemeanor governance. Practical research has proved that the crime of aiding information network criminal activities, as one of the representatives of misdemeanors, has problems such as the weak independence function of fines and sentences, the low application rate of suspended sentences, and the unclear application standards, which deviate from the plea leniency system and the requirements for the governance of misdemeanors with commensurate punishments. "The management of misdemeanors is a complex, arduous and long-term systematic project, which requires continuous exploration and improvement." As an important part of the misdemeanor management system project, the judiciary needs to break away from the thinking of heavy punishment, get rid of the dependence on imprisonment and fines, and always uphold the doctrine of penal moderation, so as to release the goodwill of the judiciary to the greatest extent and respect and protect human rights.
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Producer: Zhang Yongjiang
Author: Chen Yifen, 2023 Master of Laws (LLM) student at Xiangtan University Law School
Editor: Chen Yifen
Editor-in-charge: Xu Yuanyuan
Review: Wu Xia
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