The Defense Points of the Crime of Helping Faith

Author | Criminal Center, Zhang Nannan Criminal Defense Lawyer Team

Since October 10, 2020, the state has officially deployed and implemented the "card break" operation, cracking down on the "black and gray industrial chain", and severely cracking down on, rectifying and punishing the behavior of renting, selling, and selling bank cards and phone cards. Among the crimes caused by renting, selling, and selling bank cards and phone cards, it may involve the crime of helping information network crimes.

The Criminal Law stipulates the crime of assisting information network criminal activities: "Knowing that others use information networks to commit crimes, providing Internet access, server hosting, network storage, communication transmission and other technical support for their crimes, or providing advertising promotion, payment and settlement assistance, etc. If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be sentenced to a fine or a fine.

If a unit commits the crime in the preceding paragraph, it shall be fined, and the person in charge directly responsible for it and other directly responsible personnel shall be punished in accordance with the provisions of the first paragraph. If the acts in the preceding two paragraphs constitute other crimes at the same time, they shall be convicted and punished in accordance with the provisions with heavier penalties. "

The crime of assisting information network criminal activities requires that the subjective aspect of the perpetrator is intentional, and must "know that others use information networks to commit crimes." Here, "knowing" is knowing the object of the behavior and is the subjective element that constitutes the crime. Therefore, for the parties who provide technical support or help, if the evidence in the case cannot prove that they know that others "use information networks to commit crimes," it does not constitute the crime, which is an important argument of this crime.

Knowing in criminal law includes knowing or should have known. "Knowing" means that the perpetrator has known the object of the act under the confirmation of the suspect's own confession, documentary evidence and other evidence. "Should have known" means that there is no evidence to directly prove it, but based on certain evidence, the perpetrator can be presumed to have some kind of intention.

Article 11 of the Interpretation provides that providing technical support or assistance to others in committing a crime, under any of the following circumstances, the perpetrator may be determined to have known that others used information networks to commit crimes (except where there is evidence to the contrary):

(I)After being notified by the regulatory authorities, the relevant acts are still carried out.

(2)Failure to perform statutory management duties after receiving a report.

(3)The transaction price or method is obviously abnormal.

(4)Providing specialized programs, tools, or other technical support or assistance for illegal crimes.

(5)Frequent use of covert Internet access, encrypted communication, data destruction and other measures or the use of false identities to evade supervision or investigation.

(6)Providing technical support or assistance for others to evade supervision or evade investigation.

(7)Other circumstances sufficient to determine that the perpetrator knew.

Defense Points of the Crime of Helping Information Network Criminal Activities

(1) On the issue of subjective "knowing"

The most important factor in criminalizing the crime of "helping to believe" is to determine whether the perpetrator has "knowing" about the predicate crime, and the determination of this "knowing" is more complicated, usually by inferring knowing, and inferring knowing must be based on Article 11 of the "Interpretation". This requires judging whether the behavior of the perpetrator, such as the transaction method and transaction price, is abnormal. If there is evidence to prove that the behavior of the perpetrator is a normal behavior, then even if the perpetrator objectively provides help to the predicate crime, but lacks subjective "knowing", it cannot be regulated by this crime.

(B) neutral acts of assistance

Neutral helping behavior refers to the behavior that does not have criminal significance from the appearance, and objectively promotes the implementation of the principal offender's behavior. Neutral helping behavior does not have social harm in appearance, but actually plays a positive role in helping the principal's criminal behavior.

The establishment of this crime is a focus for distinguishing between neutral acts and assisting illegal and criminal acts. If the neutral actor does not conspire with others, but only performs normal business or service acts, and the act is exploited by criminals, the objective act is not enough to presume knowledge, then the neutral actor does not constitute the crime.

If, in the context of the current stage of Internet development and network technology standards, ordinary people cannot recognize that their actions are acts that assist in cyber criminal activities, or are obviously beyond the ability of ordinary people to recognize, they can be based on net neutrality actions and excluded from suspicion of constituting a crime.

(3) The crime of the person being helped has not been confirmed, and the available evidence cannot prove that they provided assistance for the crime

The crime of aiding information network criminal activities does not criminalize the helping behavior, but is still subordinate to the main criminal behavior, and the premise is that the main criminal behavior is established as a crime. From the objective elements of this crime, the crime of aiding information network criminal activities requires the actor to provide Internet access, server hosting, network storage, communication transmission and other technical support for the aided person, or to provide advertising promotion, payment and settlement and other helping behaviors.

It can be seen that the essence of this crime is based on the premise that the person being helped commits the crime, and has the attribute of assisting the crime, and there is a certain degree of dependence between the two.

The degree of dependence between the two has some controversy in theory and practice. But it is clear that whether the behavior of the person being helped constitutes a crime, in the case of unclear facts, insufficient evidence, and unclear verification, whether the helper helped others to commit a crime is also in a situation that has not been verified. Of course, the crime of helping information network criminal activities cannot be established.

(4) To determine whether the technology or services provided are legitimate or have a reasonable basis

Whether real-world friends instigated, whether they were deceived, whether the transaction price was reasonable, whether the transaction location and delivery method were concealed, whether they communicated through false identities, whether they destroyed data, whether they were punished and supervised, whether they were banking or telecommunications practitioners, and whether the area where the perpetrator was located was an area with intensive publicity against two-card crimes.

Team Profile

Zhang Nannan, lawyer

Member of the Management Committee of

and Director of the Criminal Center

Deputy Director of Commercial Crime Defense Legal Professional Committee of Shenzhen Lawyers Association

Member of Duty Crime Defense Committee of Guangdong Lawyers Association

Shenzhen outstanding female lawyer

Lawyer Zhang Nannan specializes in criminal case defense, criminal compliance, criminal risk prevention and control and other legal affairs, and has hosted many cases of non-prosecution, public security withdrawal, release on bail pending trial, and declaration of probation.

Zhang Nannan's team of criminal defense lawyers has rich and long-term practical experience in criminal litigation, corporate compliance, legal rights protection and other criminal legal services.

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