Using Scenario-based Standards to Determine an "Unspecified Majority" in Wire Fraud Crimes

2024-07-02 10:09Yanbian Procuratorate

According to the definition of telecommunication network fraud in Article 2 of the Anti-Telecommunication Network Fraud Law of the People's Republic of China promulgated in 2022, it can be seen that the crime of telecommunication network fraud refers to the criminal act of defrauding public and private property by means of remote and non-contact means by using telecommunication network technology for the purpose of illegal possession. According to the Guidelines for Procuratorial Organs Handling Telecommunications Network Fraud Cases (hereinafter referred to as the "Guidelines") issued by the Supreme People's Procuratorate in 2018 and the Opinions on Several Issues Concerning the Application of Law in the Handling of Criminal Cases such as Telecommunications Network Fraud jointly promulgated by the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security in 2016, it can be seen that telecommunication network fraud, as a special form of ordinary fraud, in addition to meeting the constitutive elements of the crime of fraud, also needs to have both the technical nature of the criminal means and the non-specificity of the target of the crime, remote, and non-contact of spoofing. Among them, the unspecific nature of the target of the crime, that is, the target of the crime is an unspecified number of people, has become a difficulty in judicial determination due to the diverse means and concealment of the criminal methods of telecommunications network fraud. In view of the fact that the threshold for committing telecommunications network fraud is lower and the sentencing is more severe than that of ordinary fraud, it is necessary to accurately identify the characteristic of "unspecified majority" in order to distinguish telecommunications network fraud from traditional fraud, and to better realize the precise crackdown and punishment of telecommunication network fraud.

　　In the case of telecommunications network fraud, although the Guidelines and Opinions indicate that the target of the crime is an indispensable objective element for the establishment of a crime, there are no clear judicial norms to clarify the determination of an "unspecified majority". In judicial practice, the fraudulent activities carried out by the perpetrator to an unspecified person in the form of mass text messages or phone calls meet the element of "an unspecified number of people", and a consensus has been reached in judicial practice that such conduct is a crime of telecommunications network fraud. However, with the continuous escalation of telecommunication network fraud methods, there are differences in judicial practice as to whether the target of such fraudulent information meets the requirements for the determination of an "unspecified majority" in telecommunication network fraud crimes by disseminating fraudulent information by sending group messages to friends or posting updates on relatively closed social tools, and sending fraudulent information to unspecified units. The determination of the element of "unspecified majority" is a fundamental issue involving the establishment of the crime of telecommunications network fraud, and it is necessary to explore the substantive criteria for determining the "unspecified majority" from both factual and normative aspects.

　　The main doctrine of the "unspecified majority" identification

　　At present, the "unspecified majority" in the crime of telecommunications network fraud is generally believed by the mainland criminal law theory circles to refer to an unspecified majority of individuals, and does not include units. An entity is a collection of individuals, the recipient of fraudulent information is still an individual, and an entity suffers property losses as a result of an individual being deceived, so it is reasonable to exclude a legal entity of the entity category from the "unspecified majority", and the "unspecified majority" should only refer to natural persons. In the past, the academic community mainly conducted elemental examination from the two aspects of "unspecified majority" and "majority". According to this judgment path, it is difficult to determine whether the act of committing telecommunication network fraud against a specific group of people in a specific region belongs to an "unspecified majority" in judicial practice, and such fraud is more or less characterized by the openness of the target society and the public dissemination of the method, and it would be inflexible to simply identify the target of the fraud as a specific group of people and deny its "unspecificity". At present, the identification of the element of "unspecified majority" in academic circles can be summarized into three theories: subjective purpose theory, objective behavior theory, and subjective and objective combination theory.

　　The subjective purpose theory holds that if the perpetrator subjectively believes that he is the target of fraud with an unspecified majority, then the requirement of the "unspecified majority" element is met. Whether telecommunications network fraud is directed at an unspecified number of people is, by its very nature, the subjective consciousness of the perpetrator, and compared with the objective aspect, it has a greater abstraction and implicitness, and although it is difficult to be directly perceived and grasped, it will still be reflected and reflected through the external behavior of the actor who is outward-looking and objective. In essence, the crime of telecommunications network fraud belongs to the category of fraud crimes, and the subjective consciousness of the perpetrator should only be limited to the intention of the fraud in terms of statutory composition, and the consciousness of an unspecified number of criminal targets does not belong to the statutory category that the perpetrator should recognize, which is a misunderstanding of the pattern of a single crime. Judicial practice also shows that it is difficult for the perpetrator to concretely recognize the nature of the object of his conduct, whether it is a case of telecommunications network fraud that has already been determined or it is difficult to identify an "unspecified number of persons". Therefore, the theory of subjective purpose lacks compatibility with criminal practice, and it is difficult to scientifically identify the "unspecified majority" in essence.

　　According to the objective act theory, the determination of the element of "unspecified majority" is determined by the object to which the actor's act of disseminating false information is directed, that is, the scope of the determination of the element of "unspecified majority" is the scope after excluding the unspecified minority, the specific majority, and the specific minority. Among them, "majority" generally refers to more than three people. In the implementation of network fraud activities targeting people in specific communities, the objective behavior theory holds that the community is a collection of specific groups of people, and the perpetrators of fraud do not have the ability to randomly select the target of fraud, so the aggregation of specific groups of people such as specific communities does not belong to the category of "unspecified majority". It can be seen that the objective behavior theory separates the possibility of dynamic changes between the act and the result of the infringement, and restricts the "unspecified majority" to a static formal determination, which does not meet the needs of the theory and judicial practice of telecommunication network fraud.

　　The theory of subjective and objective combination holds that it is reasonable to combine the externalized expression of the will of the subjective teleological theory with the objective behavioral theory of the target of fraudulent information dissemination behavior to jointly determine the element of "unspecified majority". Obviously, this doctrine can better connect the subjective and objective aspects of crime and achieve the unity of subjective and objective forms, but in essence, it is still a reflection of the simple appearance of the criminal process, and cannot reflect the essential characteristics of telecommunication network fraud. In addition, the doctrine further limits the scope of "unspecified majority" on the basis of the behavioral theory, which is not conducive to the development of the prevention and control of telecommunication network fraud.

　　Scenario-based criteria for determining "unspecified majority".

　　The scenario-based determination of "unspecified majority" refers to the substantive determination of the element of "unspecified majority" at the normative level on the basis of the objective conduct theory, comprehensively considering the actual possibility of the unspecified scope of the consequences of the crime and the actual performance of the victim. Among them, the "unspecified" in "unspecified majority" under the scenario-based standard should have two meanings: one is the objective unspecified object of the crime, and the other is that the result of the crime has a realistic possibility of pointing to the unspecified criminal object. In determining an "unspecified majority", as long as one of the conditions is met, the characteristic of an "unspecified majority" can be considered to be met. It is easy to determine in practice that the objective object of the crime is not specified, and it can be accurately determined by applying the objective behavior theory. For example, if a group of actors sends fraudulent information to their social software friends or to a group of many people, based on the immediacy of the social platform, the convenience of dissemination, and the sociality among friends can be considered to have a realistic possibility of pointing to an unspecified criminal target, and should be found to meet the characteristics of an "unspecified majority". However, the criterion of the actual possibility that the outcome of the crime is directed to an unspecified criminal target does not apply to a specific minority and an unspecified minority, such as the perpetrator sending fraudulent information to two or three friends, and the two or three friends disseminate it to cause an unspecified majority of people to receive it, and if the perpetrator does not intend to take advantage of the friend, it cannot simply be determined that the conduct meets the characteristics of an "unspecified majority", and can only be punished as the crime of ordinary fraud.

　　In short, with the development of social networking, the methods of telecommunication network fraud are becoming more and more diversified, which brings great difficulty to the accurate identification of telecommunication network fraud crimes, especially when determining the characteristics of "unspecified majority", it is necessary to grasp the difference between telecommunication network fraud crimes and ordinary fraud crimes. In the course of fraud, the former is an "unspecified majority", while the latter is a "specific target". Similarly, under the scenario-based designation standard, it is not possible to simply refer to the scope of the actor's intended target, the scope of the simple objective act to the target, or even the actual number of people defrauded in the end as the criteria for determining the "unspecified majority" of telecommunications network fraud, and only by carefully studying and judging the history of the fraud in the case can we better grasp the determination of the "unspecified majority". In view of the characteristic of "unspecified majority", the author proposes scenario-based identification criteria on the basis of existing theories, so that the identification of "unspecified majority" is more in line with the actual needs of combating telecommunications network fraud.

　　(Author's Affiliation: Criminal Law Research Center, Soochow University, Wang Jian Law School, Soochow University)

Source: Procuratorate Daily