The use of online platforms to characterize the behavior of "swiping orders and running scores" for others

Basic facts of the case

The People's Procuratorate of Taocheng District, Hengshui City, Hebei Province, accused defendants Li Moujun and Liu Moutong of the crime of aiding information network criminal activities, and filed a public prosecution with the Taocheng District People's Court of Hengshui City, Hebei Province (hereinafter referred to as the Taocheng District People's Court).　　

After trial, the Taocheng District People's Court found that in February 2021, the defendant Li Moujun saw an advertisement in a WeChat group for swiping orders to earn commissions, and because he was greedy for small profits, he earned commissions by helping others "swipe orders and run points". The specific behavior pattern is: Li Moujun was instructed by the App platform to transfer funds to the platform's designated account in exchange for platform points, and then the platform returned the transferred principal and illegal gains to his account according to the points. Li Moujun used the bank card in his name or instructed others to transfer funds of 10.4672 million yuan for the criminals of information network crime when the relevant bank clearly reminded him of the risk of illegal transfers for others, and knew that the above-mentioned acts would involve illegal and criminal activities such as telecommunications fraud. Among them, Li Moujun used his own bank card to transfer 1.6248 million yuan for criminals: used 7 bank cards handled by the defendant Liu Moutong to transfer 3.7824 million yuan for criminals: used 10 bank cards handled by Chen Mouzhi (handled in a separate case) to transfer 5.0599 million yuan for criminals. After the case, Li Moujun took the initiative to withdraw 6,000 yuan of illegal gains.　

Adjudication Results

The Taocheng District People's Court held that the defendant Li Moujun clearly knew that it was criminal proceeds and transferred them, making it impossible to promptly investigate and deal with the predicate crimes, and the circumstances were serious, and his conduct constituted the crime of covering up and concealing criminal proceeds; Defendant Liu Moutong clearly knew that others were using information networks to commit crimes, and provided criminals with bank accounts and assistance in payment and settlement, the circumstances were serious, and his conduct constituted the crime of aiding information network criminal activities. The public prosecution's accusation that defendants Li Moujun and Liu Moutong committed the crime is established, but the accusation against Li Moujun is inappropriate and should be corrected. The judgment found that the defendant Li Moujun was guilty of covering up and concealing criminal proceeds, and sentenced him to three years and six months imprisonment and a fine of 30,000 yuan; Defendant Liu was sentenced to seven months imprisonment and a fine of 5,000 yuan for aiding information network criminal activities. Defendant Li Moujun's illegal gains of 6,000 yuan were confiscated and turned over to the state treasury.　　

After the first-instance verdict was announced, defendant Li Moujun appealed on the grounds that the original judgment was erroneous and should be found to be the crime of aiding information network criminal activities and that the sentence was too heavy. During the second-instance trial, the appellant Li Moujun applied to withdraw the appeal.　　

The Intermediate People's Court of Hengshui City, Hebei Province, found after trial that the facts ascertained in the original judgment and the application of law were correct, and the sentence was appropriate. Appellant Li Moujun's application to withdraw the appeal was in accordance with the law. The court ruled that the appellant Li Moujun was allowed to withdraw the appeal.　　

Problem solving

(1) The use of online platforms to characterize the conduct of others to "swipe orders and run scores".　

With the popularization and application of the Internet, many traditional criminal models in cyberspace are often replaced by more covert methods to evade censorship. The use of online platforms to swipe orders and run scores for others is a new type of crime model that has emerged in recent years. The "running points" platform has developed from the initial use of the personal WeChat and Alipay collection codes of the runners to accept illegal and criminal funds, to the use of Bitcoin, Tether and other virtual currencies and digital currencies to achieve anonymous buying and selling transactions. Taking telecom fraud as an example, the specific operation process of "running points" is as follows: the runners register on the "running points" platform and provide their bank cards, personal collection codes and other information, and at the same time pay a certain amount of deposit to the platform, or provide a deposit in disguised form in the form of recharging in exchange for points. The platform provides the QR code of the runner to the criminals for receiving the proceeds of fraud, and every time the QR code of the runner receives a fund, the platform will deduct the corresponding amount from the deposit or points of the runner after calculating the corresponding commission, and transfer the funds to the criminals after deducting the service fee. The funds received in the account are frequently transferred between multiple banks and third-party payment platforms, and the source is concealed and then continued to be remitted to the platform as a deposit. It is closely related to criminal activities such as telecommunications fraud and online gambling, and may constitute the crime of illegal business operation, the crime of aiding information network criminal activities, the crime of money laundering, and the crime of covering up and concealing criminal proceeds and the proceeds of criminal proceeds, and may also constitute an accomplice to the crime of fraud, gambling, opening a casino and other predicate crimes.　　

There are the following three opinions on how the defendant in this case, Li Moujun, should be convicted of his behavior of "swiping orders and running scores" on the online platform.　　

The first opinion holds that the defendant Li Moujun's provision of fund collection and payment services for crimes such as telecommunications fraud through bank accounts and virtual currency trading platforms without approval is an illegal engagement in fund payment and settlement business, and should be found to be the crime of illegal business operation.　　

The second opinion holds that the defendant Li Moujun clearly knew that others were committing information network crimes, and provided others with assistance such as payment and settlement, and should be found to be the crime of aiding information network criminal activities.　　

The third opinion holds that the defendant Li Moujun clearly knew that such "running points" was "laundering" criminal proceeds for others, but still carried out transfer behaviors such as buying and selling, helping to cover up and conceal the source and nature of others' criminal proceeds, and should be found to be the crime of covering up and concealing criminal proceeds.　　

We agree with the third opinion for the main reasons:　　

First of all, defendant Li Moujun's conduct does not constitute the crime of illegal business operation, and Article 225, Paragraph 3 of the Criminal Law stipulates that "illegally engaging in securities, futures, or insurance business without the approval of the relevant competent state departments, or illegally engaging in fund payment and settlement business" constitutes the crime of illegal business operation. Article 1 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Illegally Engaging in Fund Payment and Settlement Business and Illegal Foreign Exchange Trading stipulates that "a person who uses methods such as an acceptance terminal or an online payment interface to pay monetary funds to a designated payer in an illegal manner such as virtual transactions, false prices, transaction refunds, etc." is "illegally engaged in fund payment and settlement business". The mainland prohibits the establishment of virtual currency trading platforms to engage in fund payment and settlement business, therefore, the "running points" platform is suspected of illegal business operations. However, the main system platform operator of the crime of illegal business operation is not the general user. Where the perpetrator registers an account on the platform to help others "swipe orders and run scores", it generally does not constitute the crime of illegal business operations.　　

Second, defendant Li Moujun's conduct meets the constitutive elements of the crime of aiding information network criminal activities. On the basis of Criminal Law article 287-2, clearly knowing that others are using information networks to commit crimes, and providing assistance such as payment and settlement for their crimes, and the circumstances are serious, constitutes the crime of aiding information network criminal activities. The crime of aiding information network criminal activities requires the perpetrator to "clearly know that others are using information networks to commit crimes", and when determining knowledge, a comprehensive judgment should be made based on the cognitive level of ordinary people and the cognitive ability of the perpetrator, whether the relevant conduct violates the prohibitions of the law, and the perpetrator's confession and justification. Article 11 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Illegal Use of Information Networks and Aiding Criminal Activities on Information Networks summarizes the rule of presumption of subjective knowledge, including "providing procedures, tools, or other technical support or assistance specifically for violations and crimes". The virtual currency platform itself is prohibited by mainland law, and "swiping orders and running scores" is not a normal activity of the online platform, but mainly provides assistance in the flow of funds for illegal and criminal activities, and the harmfulness of such activities is also widely publicized in the mainland, so it can be presumed that the relevant persons are aware that the funds involved may be related to information network crimes. Objectively, the act of "running scores" falls into the category of providing "assistance such as payment and settlement". Therefore, Li Moujun's conduct meets the constitutive elements of the crime of aiding information network criminal activities.　　

Third, defendant Li Moujun's conduct constituted the crime of covering up and concealing criminal proceeds, and the essence of his conduct was to "launder the stolen money" in order to cover up and conceal the nature and source of criminal proceeds. First, in the subjective aspect, it can be presumed that the perpetrator "knew that it was the proceeds of crime". Paragraph 2 of Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases such as Money Laundering enumerates the circumstances under which knowledge is presumed, including "assisting in the conversion or transfer of property through illegal means without a legitimate reason" and "assisting others in storing large amounts of cash in multiple bank accounts or frequently transferring them between different bank accounts without a legitimate reason". The Interpretation was formulated in 2009 and is in the ascendant of online platforms, but the Interpretation enumerates new situations that can be encountered in the Internet age. In this case, the relevant bank has clearly reminded Li Moujun of the risk of illegally transferring money for others, and reminded that it may involve illegal and criminal activities such as telecommunications fraud, and that Li Moujun knew the illegal nature of the act of "swiping orders and running points", and was able to realize that his behavior was to help others transfer money frequently without legitimate reasons, which would play a role in helping others evade the state's anti-money laundering review, so it can be presumed that he "knew that it was criminal proceeds". Second, in terms of objective conduct, "swiping orders and running scores" is a type of money laundering act that assists in the transfer or conversion of funds as provided for in articles 191 and 312 of the Criminal Law, and is a variant of the transfer to cyberspace under the condition that traditional money laundering acts are strictly monitored. The most common manifestation of traditional money laundering is that the perpetrator accepts the instructions of the upstream actor, provides him with information such as his own and others' bank card account numbers, and after the stolen money is remitted to these accounts, he or she withdraws cash according to the notice of the upstream actor, and hands it over to the upstream actor after deducting the remuneration. On the basis of traditional money laundering, the behavior of "swiping orders and running points" omits cash withdrawals, and evolves the step of handing over into a virtual currency buying and selling method, which is essentially a means of money laundering. Third, the behavior of online platforms "running away from scores" infringes on the order of social management and affects the judicial organs to investigate crimes. The parties to the transaction of the virtual currency platform do not know each other, and they cannot be directly contacted without special means, and the real identity and information of the other party cannot be directly contacted by special means, so that a large number of decentralized transactions are carried out in the way of buying and selling virtual currency, so as to realize the transfer of funds, making it difficult to trace the whereabouts of funds.　　

Finally, defendant Li Moujun's conduct meets the constitutive elements of both the crime of aiding information network criminal activities and the crime of covering up or concealing criminal proceeds, and in accordance with the provisions of paragraph 3 of Criminal Law article 287-2, one of the felonies should be selected and punished, and found to be the crime of covering up or concealing criminal proceeds.　　

This case involves the relationship between the crime of aiding information network criminal activities and the crime of covering up or concealing criminal proceeds. Before the Criminal Law established the crime of aiding information network criminal activities, in practice, there was a relatively clear boundary between the accomplice to the predicate crime and the downstream crime of covering up or concealing criminal proceeds or money laundering by whether there was "prior conspiracy". However, in the face of the complexity of the cybercrime chain, there are certain deficiencies in the traditional theory of joint crime, so the crime of aiding information network criminal activities is added in Amendment (9) of the Criminal Law, and some of the aiding acts are criminalized to meet the needs of combating cybercrime. The establishment of this crime has substantially expanded the boundaries of criminal punishment, including some previous acts that were dealt with as accomplices through expanded interpretations, as well as marginalized and neutral business behaviors that are difficult to pursue criminal liability according to the traditional theory of accomplices. Because the subjective "knowledge" of the crime of aiding information network criminal activities and the "payment and settlement" in the mode of conduct are prone to overlap with the crime of being an accomplice to the predicate crime and covering up or concealing criminal proceeds, there is a certain confusion in the application of law in judicial practice. Judging from the legislative background of the crime of aiding information network criminal activities, this crime has the characteristics of plugging leaks, supplementing, and being comprehensive, and its sentencing range is fixed-term imprisonment of not more than three years, short-term detention or fine, which also shows that this crime is a misdemeanor compared with the upstream crimes such as accomplice and money laundering, and the crime of covering up and concealing criminal proceeds. When the crime of aiding information network criminal activities competes with the crime of money laundering and the crime of covering up or concealing criminal proceeds, the crime of money laundering or the crime of covering up or concealing criminal proceeds shall be convicted and punished in accordance with the heavier punishment.　　

In practice, on the one hand, it is necessary to avoid improperly expanding the scope of application of the crime of aiding information network criminal activities because the threshold for obtaining evidence for the crime of aiding information network criminal activities is relatively low, and elevate conduct that does not constitute a crime to be dealt with; On the other hand, it is also not possible to confuse the constituent elements of the crime and downgrade the conduct that should be punished as a serious crime such as the crime of money laundering and the crime of covering up or concealing the proceeds of crime. Referring to the provisions of Article 5 of the "Minutes of the Meeting of the Third Criminal Trial Division of the Supreme People's Court, the Fourth Procuratorate of the Supreme People's Procuratorate, and the Criminal Investigation Bureau of the Ministry of Public Security on Issues Concerning the Application of Law in the 'Card Breaking' Operation" and its spirit, attention should be paid to distinguishing the following levels of "swiping orders and running scores": First, the "running points" platform operator may constitute the crime of illegal business operation, money laundering, and the crime of covering up or concealing criminal proceeds at the same time, and should be punished as a felony. Second, where the perpetrator clearly knows that others are suspected of using information networks to commit crimes, and only rents or sells bank cards to others for the purpose of "swiping orders and running scores", and the circumstances reach the standard of seriousness, it can help punish the crime of information network criminal activities. Third, a person who clearly knows that another person is suspected of committing a crime and that the funds he handles should be the criminal proceeds and proceeds of others, but still uses his or her own or the bank card he collects to "swipe orders and run scores" for others, may be punished for the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds, and because it is generally difficult for the perpetrator to know that the funds handled come from the seven special predicate crimes of the crime of money laundering, it is generally not found to be the crime of money laundering. Fourth, where there is truly evidence to the contrary that proves that the perpetrator provided a bank card out of a relationship of trust between relatives and friends, or was credulous to others, believing that it was to help others inflate their performance, help gamers recharge, and so forth, and carry out acts such as "swiping orders and running scores", it is not to be punished as a crime.　　

What needs to be further explained is that there is a theoretical difference between the "knowing" of the crime of aiding information network criminal activities and the crime of covering up or concealing criminal proceeds, but "knowingly" itself is a difficult point in the review of evidence, and the presumption rule applies to both of them, so it is necessary to combine the defendant's confession and justification with the facts of the case, focusing on the relationship between the perpetrator and the relevant crime in the chain, the actor's own degree of activity, profitability, and other objective characteristics. For example, in this case, the defendant Liu Moutong only provided a bank card to others to "run points", and did not make further transfers or provide face verification, and was more alienated and marginalized from the related crimes, so it is correct to find that it is the crime of aiding information network criminal activities, and it cannot be found that it also constitutes the crime of covering up and concealing criminal proceeds just because Liu X notified Li X that he was "running points".　　

(2) How to determine the amount of the crime of covering up or concealing　

The premise for determining the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds is that the facts of the predicate crime are established. Due to the networked means of concealment and concealment and the concealment of upstream crimes, it is difficult to verify the criminal circumstances corresponding to each fund received by the account in practice. On the basis of article 21 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 Criminal Procedures in Handling Cases of Information Network Crimes", in cases of information network crimes involving a particularly large number of people, where it is truly impossible to collect evidence to prove and verify the source of funds in the accounts involved in the case one by one due to objective constraints, but it is sufficient to determine that the relevant accounts are primarily used to receive or transfer funds involved in the case on the basis of transaction records such as bank accounts, non-bank payment accounts, and other evidentiary materials, The amount of the crime may be determined on the basis of the amount of funds received in the account, except where the criminal suspect or defendant can make a reasonable explanation. In this case, Li Moujun used the platform to carry out cover-up and concealment of the predicate criminal proceeds, and the victim's report materials and bank transfer records in the case can clearly confirm that part of the funds in the account are the criminal proceeds of telecommunications network fraud, and the other funds in the account are not used for his own and others' normal living and production expenses, combined with the fact that he has received bank fraud reminders and short-term high-frequency transfer of funds, it should be determined that all the funds received by his bank card involved in the case are criminal amounts that were covered up or concealed. The criterion of aggravating circumstances has been met.

To sum up, according to the specific circumstances of this case, the court changed the charges and convicted and punished Li Moujun for the crime of covering up and concealing criminal proceeds.

Source: Criminal Trial Reference, Episode 138, No. 1575.

Written by:

Cao Dongfang, Fourth Criminal Division of the Supreme People's Court

Zhao Ziwei, Intermediate People's Court of Hengshui City, Hebei Province