"People's Court Daily": Determination of the nature of the act of helping cybercrime "attract followers and drain traffic".

【Copyright Notice】The copyright belongs to the original author, only for learning and reference, it is forbidden to use it for commercial purposes, if the source is marked incorrectly or violates your rights and interests, please inform us, we will delete it immediately. Source: People's Court Daily, 6th edition on 27 June 2024. Author: Li Xinchun Li Yilin, People's Court of Pingyu County, Henan Province.

case

　　Between January and November 2022, defendant Zhang saw the information posted by the defendant Zhang on Baidu Tieba that he had posted "calling others to pay attention to stocks, official accounts, and calling others to ask if they were looking for a job to make money", so he added him as a friend. After introducing the workflow, the upline provided the phone number of an unspecified person to Zhang. Zhang made calls to unspecified people according to the phone number provided by the upline, and induced interested subjects to add the specific WeChat account provided by the upline on the grounds of paying attention to stocks, official accounts, and helping them find jobs, so as to create conditions for the upline to carry out fraud. After Zhang contacted the victim, as long as the victim added the WeChat account provided by the upline or followed the official account provided by the upline, even if the order was successful, the upline would pay Zhang a reward ranging from 40 yuan to 60 yuan, and the defendant Zhang made a total of 220,000 yuan in illegal profits.

divergence

　　The focus of the dispute in this case is how the defendant's conduct is characterized. In judicial practice, there are two main views on the characterization of the act of helping cybercrime to "attract followers and drain traffic": The first view is that the defendant's conduct should be found to be the crime of aiding information network criminal activities (hereinafter referred to as the crime of aiding trust). The reason is that the defendant in this case clearly knew that others were using information networks to commit crimes, but still provided assistance for their crimes by "attracting followers and draining traffic", and objectively created conditions for fraudsters to carry out illegal and criminal activities in the future through the method of "draining and attracting fans", and his conduct constituted the crime of aiding information network criminal activities.　　

The second view is that the defendant's conduct should be found to be the crime of fraud. The reason is that the defendant in this case clearly knew that others were using information networks to commit the crime of telecommunications network fraud, and called an unspecified victim according to the phone number provided by the online company, and induced the victim to add the WeChat provided by the fraud gang, creating conditions for them to carry out fraud online, forming a relatively stable cooperative relationship, and should be punished as an accomplice to the crime of fraud.

Analysis

　　With the rapid development of Internet information technology, there are more and more new types of crimes using information network technology, and the related criminal industry chain is becoming more and more sophisticated. Since the creation of the crime of aiding and trusting in Amendment (9) to the Criminal Law, the Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Law in the Handling of Criminal Cases such as Telecommunications Network Fraud (2016), 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 (2019), the Supreme People's Court, the Supreme People's Procuratorate, the Supreme People's Procuratorate, the Supreme People's The Ministry of Public Security's Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Telecommunications Network Fraud (II) (2021) have been released one after another, providing clearer guidance for the judicial application of the crime of aiding trust, but in practice, there are still different standards for distinguishing and identifying accomplices to the crime of aiding trust.　　

In this case, the defendant clearly knew that others were using information networks to commit illegal crimes, and in order to obtain benefits, he helped the upstream crime to "attract fans and attract traffic", should such circumstances be found to be an accomplice to the crime of fraud or the crime of aiding trust? The author believes that in terms of the characterization of the defendant in this case, the first view is more appropriate and reasonable, that is, the defendant's conduct of "attracting fans and draining traffic" for cybercrime should be found to be the crime of aiding and abetting trust in accordance with law.　　

The author will analyze the elements of the object of the crime, the objective elements of the crime, and the subjective elements of the crime, in order to provide a certain reference for judicial practice.　　

1. The object of the crime violated by the crime of aiding trust and the crime of fraud is different　　

As a newly added crime in the 2015 Criminal Law Amendment (9), the crime of aiding and believing is stipulated in Article 287-2 of the Criminal Law of the People's Republic of China. The object of the crime of fraud is the property ownership of others, and the legislative purpose is to protect public and private property from illegal appropriation. In this case, although the "fan attraction and drainage" assistance provided by Zhang for the upline created conditions for subsequent crimes and indirectly promoted the subsequent crimes, the consequences of the victim's fraud lacked a direct correlation with Zhang's criminal acts, and Zhang's criminal acts directly violated the information network security management order of the criminal customer system, rather than the property rights of others.　　

2. The accomplices to the crime of aiding trust and the crime of fraud are objectively different in terms of the crime　　

In terms of expression, the accomplices of the crime of aiding and abetting trust and the crime of fraud have certain similarities: both provide certain tools and create conditions for the online commission of illegal crimes. However, there is a clear objective difference between the accomplices of the crime of aiding and abetting and the crime of fraud: they differ in the degree of close connection between the perpetrator and the person being helped. In the case of aiding and abetting the crime, the connection between the perpetrator and the criminal being helped is relatively loose and unfixed. The perpetrator of the crime of aiding and abetting trust is only limited to providing network technology for the upline, etc., and does not care about whether or not the offline commits the crime or what kind of crime is carried out on the upline, let alone any psychological help, in other words, there is no close connection and mutual promotion between them and the subsequent fraud on the upline. In fraud cases, the two are closely related and fixed, and the content of the contact is specific, which is often manifested as prior conspiracy or the formation of a long-term and stable cooperative relationship, forming an organic whole that cooperates and interacts with each other.　　

Because of this, paragraph 2 of article 12 of the October 21, 2019 "Interpretation of the Supreme People's Court and 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" provides that where the provision of network technology is carried out, and it is truly impossible to verify whether the target of the assistance has reached the level of a crime due to objective conditions, but the relevant amount reaches 5 times or more of the standard provided for in the preceding paragraph, or causes especially serious consequences, The perpetrator should still be held criminally responsible for the crime of aiding and abetting. On the contrary, in the same case of fraud, the perpetrator cannot be held criminally liable.　　

In this case, in the process of helping the defendant to promote and attract traffic online, the purpose of making the call was not to illegally take possession of the property of the person who answered the call, but to let the person who answered the call add his online WeChat to receive a commission of 40 yuan to 60 yuan. It can be seen that the connection between the perpetrator and the criminal being helped is relatively loose and unfixed, and the act of adding WeChat cannot be found to be the victim's voluntary disposal of property.　　

3. The subjective content of the accomplices to the crime of aiding and abetting trust and the crime of fraud is different　　

To distinguish between the crime of accomplice to fraud and the crime of aiding and abetting, in terms of the subjectivity of the crime, it is necessary to focus on two aspects: on the one hand, the degree of the perpetrator's cognition of his or her helping behavior; On the other hand, it is whether the perpetrator has the purpose of unlawful possession.　　

1. The degree of the actor's awareness of the act of helping. According to the traditional theory of accomplices in mainland China, joint crimes require that the accomplices have a communication of intent with each other, so whether to establish an accomplice to the crime of fraud or the crime of aiding and abetting depends on the degree to which the helper is aware of the criminal acts of others. In cases of aiding and abetting crimes, the perpetrator often only has a general understanding of the criminal conduct he is helping, and is not clear about the specific type and form of the crime. In the case of accomplices to the crime of fraud, the perpetrators often have a clear understanding of the acts they jointly committed. In this case, although Zhang clearly knew that the upline was using information networks to commit crimes, there was no evidence to prove that he had a conspiracy with the upline to jointly commit the crime, and although he had general knowledge of the upline's use of information networks to commit crimes, he lacked a clear understanding of when the upline personnel committed the crime, what kind of crime they committed, and how they committed the crime, and did not actually participate in the crimes committed by the upline personnel, nor did he profit from the success of the upline crime.　　

2. Whether the perpetrator has a direct purpose of illegal possession. Although the perpetrator of the crime of aiding and abetting is clearly aware that others are using information networks to commit crimes, their purpose is to obtain comparative remuneration, and they do not directly have the purpose of illegally taking possession of the victim's property; The accomplice to the crime of fraud is for the purpose of unlawful possession. In this case, the defendant Zhang subjectively made illegal profits by carrying out criminal activities, and did not have the criminal purpose of illegally taking possession of the property of an unspecified victim. Zhang settled according to the number of people who added WeChat after making a phone call and their upline, and the illegal benefits obtained were the commission paid by the upline personnel according to the number of people who added a specific WeChat ID, not the property of the person who added the WeChat ID.　　

In summary, the act of "attracting followers and attracting traffic" for cybercrime should be found to be the crime of aiding information network criminal activities in accordance with law, rather than being an accomplice to the crime of fraud.