Telecom network fraud constitutes a crime of fraud or a crime of illegal operation?

Telecom network fraud constitutes a crime of fraud or a crime of illegal operation?

Author: Zhang Chun, a partner of Guangdong Zhiheng (Guangzhou) Law Firm, focusing on the defense of economic crime cases

Note: This article is original and may not be reproduced without permission

Introduction: In judicial practice, telecommunications network crimes and illegal business operations are easy to be confused, the author screened through non-litigation cases, with "telecommunication networks" and "illegal operations" as the keywords, 88 relevant criminal judgments and 46 relevant rulings, from which the author extracted 4 relevant rulings and 6 relevant judgments, and summarized the common criminal methods and distinguishing common criteria "judging whether the perpetrator has the purpose of illegal possession is the fundamental criterion for distinguishing between the crime of illegal business operation and the crime of fraud". It has been provided for your reference.

Case 1: Defendant Tu Daozhong committed the crimes of illegal business operation and fraud; The first-instance criminal verdict of the defendant Tu X committing the crime of fraud

Case No.: (2017) Su 0118 Xingchu No. 151 Reasons for the Adjudication: (1) The relevant judicial interpretations clearly stipulate that the amount of telecommunications and network fraud of more than 30,000 yuan is a huge amount, and the defendant Tu Daozhong participated in the fraud of 56,000 yuan, and the amount should be determined to be "huge". (2) Defendant Tu Daozhong clearly knew that others were committing telecommunications network fraud, actively helped to cash out, hired others to withdraw money, and played a key role in achieving the ultimate goal of the criminal act of fraud, and is not in the status of an accessory, and should be found to be a principal offender. With regard to the defense opinion of defendant Tu Daozhong's defender, that defendant Tu Daozhong's bank cards used to pay cash by card were all debit cards, had no overdraft function, did not cause bank or personal losses, and his conduct did not constitute the crime of illegal business operation. After investigation, credit cards refer to electronic payment cards issued by banks and other units with functions such as consumer payment, transfer and settlement, and cash deposits and withdrawals, and the debit card that Tu Daozhong cashed out was an electronic payment card issued by a bank, which belonged to the category of credit cards provided for in the Criminal Law, and the defendant Tu Daozhong, in order to seek illegal benefits, fabricated transactions, and directly paid cash to credit card holders, with an amount of more than 5 million yuan, which is a particularly serious circumstance; Whether or not the cashing out of the credit card caused losses did not affect the establishment of the crime, and his conduct met the constitutive elements of the crime of illegal business operation and constituted the crime of illegal business operation, so the defense opinion was not adopted. Regarding his defense opinion that defendant Tu Daozhong's conduct did not constitute the crime of fraud and constituted the crime of covering up and concealing criminal proceeds. After investigation, the relevant judicial interpretations provide that those who clearly know that others are committing telecommunications network fraud crimes and help cash out or withdraw cash are to be punished as joint crimes.

Case 2: Cai Huawang, Zhang Qidi, Chen Chen and other first-instance criminal verdicts for fraud

Case No.: (2016) Zhe 06 Xingchu No. 59 Reasons for the Adjudication: First, concealing the fact that the handling fee was enlarged by leverage, and deliberately guiding customers to trade frequently, resulting in the loss of customer handling fees. The confessions of the defendants and the statements of the victims prove that when the salesman introduced the platform to the customer, he only stated that the handling fee was 8/10,000, but did not truthfully inform him of the increase in the proportion of the handling fee for trading leverage. Even if some customers find that the handling fee is far more than 8/10,000 in the process of trading, the salesman also persuades the customer in a variety of ways, deliberately downplaying the risk caused by the high handling fee. The salesman as a third party asked customers to frequently brush orders to earn fees, and even some customers did not lose much in transactions, and huge fees became their main losses. Secondly, deliberately leading to cause customer losses. The business model of earning customer losses determined the company's criminal motive for arranging analysts to guide customers to lose money, and the defendants' confessions proved that the defendants cooperated in carrying out the act of guiding customers to lose money. In this case, although the market was uncontrollable, the analyst still had a certain accuracy in predicting the market, and promptly encouraged the customer to close the position and buy backhand when the market prediction was wrong, resulting in a loss. Thirdly, there is no stop loss for encouraging customers to re-position operations. The defendants in the case continued to encourage customers to increase their funds and operate heavy positions, and some defendants asked customers not to set stop-losses, deliberately expanding the risk of trading losses. Even if some clients have made profits in the course of trading, they can cause huge losses when they buy in the wrong direction. To sum up, as far as the positive analysis is concerned, the above methods are comprehensively used in various business groups, and there is a direct causal relationship between the customer's loss and the defendants' behavior, and the defendants' behavior meets the essential characteristics of the crime of fraud, that is, they have the purpose of illegal possession and use deception to obtain property. As far as reverse analysis is concerned, judging whether the perpetrator has the purpose of illegal possession is the fundamental criterion for distinguishing between the crime of illegal business operation and the crime of fraud. The crime of fraud is a crime for the purpose of illegal possession, and the perpetrator of the crime of illegal business operation only has the motive of illegal profit-making subjectively, and the profit-making act is not mainly achieved through illegal possession of other people's property obtained in the course of business, but through business activities. The above-mentioned acts taken by the defendants in this case have gone beyond the normal trading rules and deliberately caused losses to customers, which is fundamentally different from the acts of following the trading rules to obtain operating profits.

Case 3: 14 Criminal verdict of first instance of Xie Dong, Wu Hang and other fraud crimes

Case No.: (2018) Su 0507 Xingchu No. 14 Reason for the judgment: After investigation, the available evidence proves that the defendants in this case are using the network to conceal the truth that they can control winning and losing, and attract customers to buy private lottery through the salesman, so as to carry out fraudulent activities, which belongs to the crime of telecommunications network fraud, and the personnel involved in the case are the managers, customer service and salesmen of Qile.com, and cooperate with each other, and the salesman receives a certain percentage of the commission according to the fraudulent money, and the defendants are involved in the fraud crime to varying degrees. All of them have the subjective purpose of illegally taking possession of other people's property, and they are all closely related communities of interest in terms of work location, organizational connections, division of labor and cooperation, and distribution of interests, so the defendants constitute a joint crime. On the basis of article 4 of the "Opinions of the Supreme People's Court, Supreme People's Procuratorate, and Ministry of Public Security on Several Issues Concerning the Application of Law in the Handling of Criminal Cases such as Telecommunications Network Fraud", where multiple people jointly commit telecommunications network fraud, the defendant shall bear responsibility for all the fraudulent acts carried out by the fraud gang during the period of their participation, and may be found to be the principal offender if they play a major role in the criminal links in which they participate; and where they play a secondary role, they may be found to be accomplices. Therefore, the defender's opinion was not adopted. This case is the use of lottery websites to carry out telecommunications network fraud, the target of the fraud is not specified, the scope of impact is wide, comprehensive consideration of the time each defendant participated in the crime, the amount of each victim during the period of participation in the crime, the amount of cash, the actual loss to the victim and the role played in the crime and other circumstances to sentence each defendant.

Case 4: Zuo Jinxia, Zhou Zhifei and others committed fraud first-instance criminal verdict

Case No.: (2018) Yu 0233 Xing Chu No. 146 Reasons for the Adjudication: The first paragraph of Article 7 of the Supreme People's Court and Supreme People's Procuratorate's "Interpretation on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Obstruction of Credit Card Management" provides: Where state regulations are violated by using methods such as point-of-sale terminals (POS machines) to make direct cash payments to credit card holders by means such as fictitious transactions, false prices, cash returns, etc., and the circumstances are serious, the provisions of Article 225 of the Criminal Law shall be followed. Conviction and punishment for the crime of illegal business operation. This court believes that the credit card provided for in the aforesaid judicial interpretation should specifically refer to a credit card with an overdraft function, and does not include a bank savings card, on the grounds that, from the three paragraphs provided for in Article 7 of the judicial interpretation, credit card cashing refers to the actor converting the credit line of a credit card into cash through a POS machine in disguise without a real transaction, so that the funds of the financial institution are at high risk, and it protects the capital security of the financial institution. The economic losses of financial institutions shall be the specific standard for conviction and sentencing. Therefore, credit card cashing has a specific meaning, that is, it refers to the cardholder swiping all or part of the amount in the credit limit of the credit card itself by swiping the card, and then the cardholder pays the cardholder the amount of the credit card in cash, and the cardholder pays the handling fee. In this case, the four defendants clearly knew that the funds in the relevant bank savings cards held by the cardholders were the proceeds of crime, but still provided them with credit card swiping services and charged handling fees, advanced the remaining amount to the cardholder after deducting the handling fees, and then went to the bank to withdraw the amount of the credit card. In summary, the public prosecution's opinion alleging that defendants Zhang Desheng, Huang Quanhai, Chen Huaqing, and Huang Youxiang committed the crime of illegal business operation cannot be sustained, and this court does not support it; The relevant defense opinions on this issue are upheld, and this court supports them.

Case 5: Criminal verdict of the second instance of fraud crimes such as Yuan Qian, Lu Jie, Wu Shiqiang, etc

Case No.: (2017) Zhe 06 Xingzhong No. 793 Reasons for the Adjudication: This court believes that the appellant Lu Jie and the defendants in the original trial, Yuan Qian, Huang Yunfan, Wu Shiqiang, Ma Shibao, and Xue Yingwang, for the purpose of illegal possession, used telecommunications networks to defraud others of their property by fabricating facts and concealing the truth, among which Yuan Qian, Lu Jie, Huang Yunfan, and Wu Shiqiang defrauded a huge amount, and Ma Shibao and Xue Yingwang defrauded a relatively large amount, and their acts constituted the crime of fraud, and some of them were joint crimes. The defendants in the original trial, Wen Chunhai, illegally operated lottery websites without the approval of the relevant parts of the state, and their acts have constituted the crime of illegal business operation, and it is a joint crime. Defendants Li Mingliang and Cui Yongzheng in the original trial clearly knew that others were using information networks to commit crimes, but still provided technical support and advertising and promotion services, and their conduct constituted the crime of aiding information network criminal activities.

Case 6: Yang Daochun and Chen Yueming's second-instance criminal verdict on fraud and illegal business operation

Case No.: (2018) Lu 17 Xingzhong No. 178 Reasons for the Adjudication: Appellant Yang Daochun used telecommunications network technology to commit fraud for the purpose of illegal possession, and the amount was huge, and his conduct constituted the crime of fraud; Appellant Chen Yueming, defendants Hu Pengcheng and Liu Hai illegally produced and sold "fake base station" equipment, appellant Chen Yueming's circumstances were particularly serious, and defendants Hu Pengcheng and Liu Hai in the original trial were serious, and their acts constituted the crime of illegal business operation. All four pleaded guilty after being brought into the case, and they may be given lighter punishments as appropriate. Defendants Hu Pengcheng and Liu Hai in the original trial actively paid the fines, the circumstances of the crime were relatively minor, they truly showed remorse, there was no danger of committing another crime, and it was announced that the suspended sentence would not have a major negative impact on the community in which they lived, and that the suspended sentence could be applied to the two in accordance with law. The Supreme People's Court, Supreme People's Procuratorate, and Ministry of Public Security's "Opinions on Several Issues Concerning the Application of Law in the Handling of Criminal Cases such as Telecommunications Network Fraud" provide that where telecommunications network technology is used to commit fraud, defrauding public or private property with a value of 3,000 RMB or more, 30,000 RMB or more, or 500,000 RMB, it shall be respectively found to be "a relatively large amount", "a huge amount", or "an especially huge amount" as provided for in article 266 of the Criminal Law.

Case 7: Fang Shaoyuan, Liu Guangzong and others committed fraud in the second-instance criminal ruling

Case No.: (2017) E 05 Xingzhong No. 141 Reasons for the Adjudication: With regard to the appellants' grounds of appeal that the crime of fraud should be found to be found to be the crime of illegal business operation without the approval of the appellants Fang Shaoyuan and Liu Guangzong, in accordance with the provisions of the law, without the approval of the securities regulatory authority, the unauthorized establishment of a trading platform and speculation of futures spot meet the provisions of Article 225, Paragraph 3 of the Criminal Law, which is "illegally engaged in securities, futures, or insurance business without the approval of the relevant competent state authorities, or illegally engaged in fund payment and settlement business". If it is an illegal business operation that disrupts the market order, the premise is that the trading platform is genuine, and the crime of illegal business operation can be convicted. However, Fang Shaoyuan and Liu Guangzong set up an online trading platform for the purpose of defrauding others of their property, the trading platform evaded state monitoring, itself was false, and it was controlled by itself in the background, and the process of operation was to lure investors into the platform with false information, taking advantage of investors' unfamiliarity with trading rules and theories, and deliberately giving unfavorable tips for investors' buying and selling points, causing investors to lose money, so as to obtain benefits. Its essence is fabricating facts, concealing the truth, and defrauding the victim's property, and it should be found to be fraud.

Case 8: Sun Wanbo and Fu Peiying's second-instance criminal verdict for fraud

Case No.: (2018) Lu 17 Xingzhong No. 431 Reasons for the Adjudication: Regarding the appellants Sun Wanbo, Fu Peiying, Wang Jiaxin, Du Yu, Ma Qing, Wang Simiao, Yang Gongwei and Yang Gongwei's defenders' argument that the appellants subjectively did not have the intention to defraud, nor did they objectively deceive the victims, but only sent text messages and earned labor fees according to the arrangements of the previous family, and did not have the same criminal intent as the actual publisher of the fraudulent information, and that there was no result of the victims being deceived in this case, and their conduct did not meet the constitutive elements of the crime of fraud, The grounds for appeal and defense opinions that should be convicted and punished for the crime of illegal use of information networks, upon investigation, found that the appellants confessed to the fact that they sent fraudulent text messages and subcontracted to others to send fraudulent text messages, and corroborated each other with evidence such as relevant electronic data, WeChat, and QQ chat records in the case, and combined with subjective and objective factors such as the cognitive ability, the number and means of their acts, and the profits, actively concealing and destroying the tools of the crime, and deliberately evading the investigation, it can be determined that the appellants were aware of the crime of telecommunications network fraud committed by others. Although there is no evidence in this case that the victim was defrauded, according to the "Opinions of the Supreme People's Court, Supreme People's Procuratorate, and Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Telecommunications Network Fraud", it is difficult to verify the amount of fraud, but if more than 50,000 pieces of fraudulent information are sent, it shall be found to be "other especially serious circumstances" as provided for in article 266 of the Criminal Law, and it shall be convicted and punished as the crime of fraud (attempt). At the same time, the Opinions also stipulate that where the conduct provided for in Articles 287-1 and 287-2 of the Criminal Law constitutes the crime of illegal use of information networks or the crime of aiding criminal activities on information networks, and at the same time constitutes the crime of fraud, it shall be convicted and punished in accordance with the provisions of the heavier punishment. The original judgment of convicting and sentencing the appellants for the crime of fraud (attempt) was based on law and was not improper. Therefore, none of the appellants' grounds of appeal can be sustained, and the defense opinions of Yang Gongwei's defender are not adopted.

Case 9: Criminal verdict of first instance for fraud crimes such as Huang, Fang, and Ye

Case No.: (2018) Zhe 1126 Xingchu No. 2 Reasons for the adjudication: 1. On the qualitative issues of this case. (1) Based on the available evidence and ascertained facts, it can be concluded that the defendant Huang Moumou, for the purpose of illegal possession, used the "Supreme International" platform to recruit agents, and the agents developed their own downline salesmen, and obtained the victim's trust by fabricating false lottery winning information and using false network identities, so that the victim had a wrong understanding of the betting, income, and withdrawal of the "Supreme International" platform, so as to recharge the bet, when in fact the defendant Huang XX knew the winning number in advance. Master the key steps of changing the winning number and controlling the withdrawal, each agent can also change the winning number in the background, and the salesman can apply for a change in the "change group". The salesman receives a commission for the performance he makes, the agent receives a commission for the total performance in his den, and the defendant Huang Moumou shares the total performance of each agent responsible for the den. Therefore, the salesman and agent who used virtual WeChat and QQ identities to add customers, tricked customers into recharging and betting on the platform, subjectively had cognition of their virtual identities and false winning information, objectively carried out fraud and produced the consequences of illegally taking possession of other people's property, the acts of the defendants in this case met the constitutive elements of the crime of fraud, and the facts of the crime charged by the public prosecution organs with the defendants of committing the crime of fraud were clear, and the evidence was credible and sufficient, and it was confirmed. In this regard, the defenders put forward the defense opinion that the defendant did not constitute the crime of fraud, but the reasons were not established and were not adopted. (2) After investigation, "Chongqing Lottery" is approved by the Ministry of Finance, issued by the China Welfare Lottery Issuance Management Center in Chongqing, underwritten by the Chongqing Welfare Lottery Distribution Center, limited to betting within the jurisdiction of Chongqing, the lottery sold in the station, Chongqing Welfare Lottery Distribution Center has stopped selling the lottery ticket on the Internet in early February 2015. The "Supreme International" platform involved in the case was set up by the defendant Huang XX in conjunction with others, and it is not legal in itself, and according to the confession and defense of the defendant in this case, the "Chongqing Shi Shi Cai" lottery numbers sold on the "Supreme International" platform are consistent with the official lottery numbers, and there is no situation of controlling the winning numbers, and the defendants Huang XX, Fang XX, Ye XX and others have used the "Supreme International" platform to illegally operate "Chongqing Shi Shi Cai" without the approval of the competent state authorities, and the act of illegally operating "Chongqing Shi Shi Cai" has constituted the crime of illegal business operation. Defendant Huang Moumou's defense that he could change the winning number cannot be mutually corroborated with the confessions and defenses of the other defendants, and there is no other evidence to support it, therefore, the defendant and some defenders put forward the defense and defense opinions that the defendant does not constitute the crime of illegal business operation, and the reasons are not established and are not supported.

Case 10: Zheng Xiao and Wu Guoqing's second-instance criminal verdict on fraud

Case No.: 2018 Gan 11 Xingzhong No. 206

Reasons for the adjudication: Appellant Zheng Xiaonu, together with appellants Wu Guoqing, Zuo Qiong, Zheng Xiaomei, and defendants Zuo Xiaoyun and Wu Shaoyan in the original trial, carried out telecommunications network fraud by means of group calls for the purpose of illegal possession, and their conduct constituted the crime of fraud, and it was a joint crime, and should be punished in accordance with law. Among them, Zheng Xiaonu defrauded an amount of 4357943 yuan, which was particularly huge; Zuo Xiaoyun defrauded 73,500 yuan, a huge amount, and made more than 5,000 fraudulent calls, with other particularly serious circumstances; Zuo Qiong defrauded 43,300 yuan, a huge amount, made more than 5,000 fraudulent calls, and had other particularly serious circumstances; Wu Shaoyan defrauded 21,000 yuan, a large amount, made more than 5,000 fraudulent calls, and had other particularly serious circumstances; Zheng Xiaomei defrauded 5,480 yuan, made more than 5,000 fraudulent calls, and had other particularly serious circumstances; Wu Guoqing subjectively knew that Zheng Xiaonu was engaged in telecommunications fraud, but objectively still helped Zheng Xiaonu to cash out by swiping her card many times, and was punished as a joint crime of fraud in accordance with the law, and the total amount of fraud was 458459 yuan, a huge amount. At the same time, Wu Guoqing violated state regulations by using point-of-sale terminals (POS machines) to cash out cards for others in a fictitious transaction and charging handling fees, amounting to 8465611 yuan. Zuo Xiaoyun, Zuo Qiong, Zheng Xiaomei, and Wu Shaoyan used a group pager to make fraudulent calls, with a daily call volume of 106××0 people, and other particularly serious circumstances, and were convicted of the crime of fraud (attempt) in accordance with law and given a reduced punishment. Zheng Xiaomei's ability to voluntarily surrender and truthfully confess the facts of her crime after being brought into the case constitutes voluntary surrender, and her punishment may be mitigated or commuted in accordance with law. Zuo Qiong, Zheng Xiaomei, and Wu Shaoyan were able to truthfully confess the facts of their crimes after they were brought into the case, constituting a confession, and the three of them may be given lighter punishments in accordance with law. Zuo Xiaoyun, Zuo Qiong, Wu Shaoyan, and Zheng Xiaomei pleaded guilty in court, returned their unlawful gains, paid fines, and may also give lighter punishments to the four defendants as appropriate. The sentencing rendered by the original trial court on the basis of the facts, circumstances, and social harmfulness of the crimes committed by the appellants and the defendants in this case was not improper, and the appellants' grounds of appeal were not sustained and were not accepted by this court.

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Author: Zhang Chun, a partner of Guangdong Zhiheng (Guangzhou) Law Firm, focusing on the defense of economic crime cases