Dehehantong successfully defended his case of assisting in information network criminal activities and was not prosecuted on suspicion

01 Basic Facts of the case

Sun Moumou is the legal representative of a certain company in Henan Province. The main business of this company is to engage in information consultation and information services, and its actual business is to assist customers in handling financial loan business.

At the end of 2022, Sun Moumou still had nine client companies that had not successfully obtained loans. Moreover, each client company was in urgent need of funds for turnover due to the end of the year. Sun Moumou contacted Manager Liu from the wechat credit department of Shantou Hengsheng Company, which claimed to be able to handle loans, through the "Heliao" platform and added him on wechat. Sun Moumou facilitated the signing of contracts between the client companies and Hengsheng Company. And collect an introduction fee of 18,000 yuan paid by Hengsheng Company. According to the requirements of Hengsheng Company, Sun Moumou sent the customer company's U shield, U shield password, settlement card and other online banking devices in batches by express delivery to Shantou City.

Afte invstigation, it was found that the accounts provided by Sun Moumou involved three first-level accounts, with a total transaction volume of 22,986,852.65 yuan. A total of 129 cases were involved, and the total amount involved was 7,982,301 yuan.

On February 14, 2023, Sun Moumou received a phone call from the Shanghai Public Security Bureau. After being informed by the Shanghai Public Security Bureau that he was suspected of fraud, Sun Moumou voluntarily went to the local public security bureau for investigation.

02 Public Security Determination

The public security authorities determined that Sun Moumou, without verifying the authenticity of the identities of the other party and knowing that the other party was going to use the bank accounts of these companies for transaction flow and there was a risk, still sent the enterprise information of the eight companies and the complete set of online banking equipment of the bank's corporate accounts in batches by express delivery to Shantou City to hand over to the other party for loan processing, and informed the other party of the online banking password. The other party gave him a bribe of 18,000 yuan. On January 1, 2023, when the criminal suspect Sun Moumou learned that the bank corporate accounts he provided to others had been frozen and were involved in the case, he still continued to provide new information about companies that needed to apply for loans and asked those companies that had not yet opened bank corporate accounts to do so.

The public security authorities determined that Sun Moumou's act of providing payment and settlement assistance for others to commit crimes through information networks by offering a corporate bank account was suspected of the crime of assisting information network criminal activities, and thus transferred the case for review and prosecution.

03 Difficulties in Defense

The awareness of the upstream crime in the crime of assisting information network criminal activities is a general awareness. The degree of awareness does not need to be specific to the specific implementation of the upstream crime. It is sufficient to realize that the upstream behavior is highly likely to be a criminal act. The transaction volume involved in this case is huge, which meets the "serious circumstances" stipulated in Article 12 of the Interpretation, and the public security has determined that Sun Moumou has made a profit.

04 Defense Viewpoint: Subjectively, Sun Moumou was unaware of the criminal act and had no intention of illegally profiting

Knowing that it is a practical and objective understanding should reach a degree of certainty and doubt, rather than reasonable doubt or vague knowledge. Therefore, the subjective awareness of the perpetrator of the crime must be a highly probable and clear cognition. According to Article 8 of the "Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Telecommunication and Internet Fraud, Etc. (II)" jointly issued by the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security, it is determined that the perpetrator stipulated in Article 287-2 of the Criminal Law, knowing that others are using information networks to commit crimes, It shall be based on the number of times, the number of cards and the quantity of credit cards, bank accounts, non-bank payment accounts, Internet account passwords with payment and settlement functions, network payment interfaces, online banking digital certificates, or others' mobile phone cards, data cards, Internet of Things cards, etc. that the actor acquires, sells or leases as stipulated in Article 7 above. And in combination with the subjective and objective factors such as the perpetrator's cognitive ability, past experience, trading partner, relationship with the perpetrator who committed information network crimes, the time and method of providing technical support or assistance, profit situation, and the perpetrator's confession, a comprehensive determination shall be made.

After reviewing the case files and meeting with Sun Moumou, the defense counsel meticulously analyzed the details, starting from the minor objective evidence, and developed the defense opinion that Sun Moumou did not have subjective knowledge:

1. Regarding the fulfillment of the obligation of qualification compliance review

Sun Moumou has retained all the company information of Hengsheng Company, including its business license. This indicates that as an industry intermediary, he has verified that the other party's company has complete licenses and certificates and fulfilled the obligation of qualification compliance review. Under normal circumstances, there is reason to believe that Hengsheng Company is a legal and qualified company, and its actions are in line with the conventional operations of industry intermediaries. This compliance review behavior to a certain extent indicates that Sun Moumou has a certain foundation of trust in the legality of Hengsheng Company, rather than knowing that it would commit criminal acts.

From the perspective of industry practice, in the financial services industry, financial companies usually need to provide bank statements and review company qualifications when handling loan business. Therefore, in specific business operations, they need to provide relevant company materials and U-shields, etc. Sun Moumou operated in accordance with this industry practice. Subjectively, he believed that this was a normal process for handling loan business, rather than knowing that Hengsheng Company would use this information to commit criminal acts.

2. In terms of cognition and judgment of abnormal situations

Sun Moumou stated that Hengsheng Company claimed to have mentioned the need for settlement cards and other requirements in order to speed up the qualification review and loan disbursement process. Moreover, as the client company was in urgent need of funds and willing to provide them, Sun Moumou transferred them. This indicates that Sun Moumou has a certain reasonable explanation for the demands put forward by Hengsheng Company and is not aware that it has bad intentions.

Based on his professional experience, it is a normal act for Sun Moumou to freeze an enterprise account due to excessive fund flow. Therefore, providing new customer information when an account has been frozen should not be regarded as being aware of the criminal act. Subjectively, they believed that this was a situation that might occur in normal business operations, rather than knowing that Hengsheng Company would use these accounts to commit criminal acts.

Having a company that has not yet opened a corporate bank account open an account is a necessary condition for the company to apply for a loan. This is a regular requirement in the financial services industry. Sun Moumou's behavior does not have the intention of assisting a crime at all. Subjectively, it is to assist customers in handling loan business, rather than knowing that Hengsheng Company will use these accounts to commit criminal acts.

3. Regarding profit situation and criminal intent

Sun Moumou has long been assisting clients in handling financial loan business. According to his previous business income records, it can be proved that his main income is about 5% of the rebate after a successful loan and the client referral fee from the financial company. The 18,000 yuan he received from Hengsheng Company was an introduction fee and should not be regarded as profit from assisting in a crime. This indicates that Sun Moumou's profit-making method is in line with industry practice. Subjectively, it is to obtain normal business income, rather than profiting from it knowing that Hengsheng Company will commit criminal acts.

When Sun Moumou failed to obtain the loan amount as stipulated in the contract from Hengsheng Company and refused to return the online banking equipment, he realized that he might have been defrauded. He immediately reported the case by phone to the police in S and X, but neither side of the police filed a case. The defense lawyer submitted two reports of evidence to the prosecution. Judging from their behavioral manifestations, if they have the awareness of protecting the client's property after fulfilling the obligation of qualification compliance review, it can be determined that they have no intention of providing assistance while knowing that others are using the information network to commit crimes subjectively.

4. Regarding the nature of the behavior and subjective intent

As an intermediary, Sun Moumou's main role is to convey information. Objectively, there is no possibility of taking risks, and there is no objective behavior of voluntarily providing settlement cards. The specific decision on whether to provide settlement cards and use transaction records to verify qualifications lies with the client company. In light of the facts of this case, Sun Moumou's act of mailing the online banking equipment to Hengsheng Company was based on the decision of the client company and falls within the category of intermediary behavior, rather than voluntarily providing payment settlement assistance subjectively. This indicates that the nature of Sun Moumou's behavior was an intermediary act, and subjectively, he had no intention of assisting Hengsheng Company in committing crimes.

In conclusion, Sun Moumou did not have the intention to provide assistance while subjectively knowing that others were using information networks to commit crimes in this case. It has fulfilled the obligation of qualification compliance review and has a certain reasonable basis of trust in the actions of Hengsheng Company. Its cognition and judgment of abnormal situations are in line with industry practices and working experience. Its profit-making method conforms to industry practice, and it actively takes measures to protect customers' property after realizing the possibility of fraud. The nature of its behavior is an intermediary act, and subjectively there is no intention to actively provide assistance in payment settlement. Therefore, Sun Moumou does not have subjective knowledge and should not be convicted of the crime of assisting information network criminal activities.

05 Result

This case was reviewed by the procuratorate and returned for supplementary investigation. After another review, it was found that the evidence provided by the public security bureau that Sun Moumou was subjectively aware was insufficient and did not meet the conditions for prosecution. In accordance with Article 175, Paragraph 4 of the Criminal Procedure Law of the People's Republic of China, it is decided not to prosecute Sun Moumou.

The crime of assisting information network criminal activities: Knowing that others are using information networks to commit crimes, providing them with technical support such as Internet access, server hosting, network storage, and communication transmission, or offering assistance such as advertising promotion and payment settlement. Article 287-2 of the Criminal Law of the People's Republic of China

Sentencing standards: If the circumstances are serious, the offender shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or solely be fined. Where a unit commits the crime mentioned in the preceding paragraph, a fine shall be imposed on the unit, and the persons directly in charge and other persons directly responsible shall be punished in accordance with the provisions of the first paragraph. Where other crimes are constituted simultaneously, the offender shall be convicted and punished in accordance with the provision carrying the heavier penalty.

Relevant judicial interpretation: 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 Illegal Use of Information Networks and Assistance in Information Network Criminal Activities, Etc." stipulates:

Article 11 Where a person provides technical support or assistance for another person to commit a crime and any of the following circumstances exists, it may be determined that the perpetrator knew that another person was using the information network to commit a crime, except where there is contrary evidence:

(1) Continuing to carry out relevant acts after being informed by the regulatory authorities;

(2) Failing to perform the legal management duties after receiving a report;

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

(4) Providing programs, tools or other technical support and assistance specifically for criminal activities;

(5) Frequently adopting measures such as covert Internet access, encrypted communication, and data destruction, or using false identities to evade supervision or evade investigation;

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

(7) Other circumstances sufficient to determine that the actor was aware of it.

Article 12 Where a person knows that another is using information networks to commit a crime and provides assistance for such crime, and any of the following circumstances exists, it shall be determined as "serious circumstances" as stipulated in the first paragraph of Article 287-2 of the Criminal Law:

(1) Providing assistance to more than three objects;

(2) Where the payment settlement amount is over 200,000 yuan;

(3) Providing funds of more than 50,000 yuan by means of advertising or other methods;

(4) Where the illegal gains exceed 10,000 yuan;

(5) Those who have been subject to administrative penalties for illegally using information networks, assisting in information network criminal activities, or endangering the security of computer information systems within two years, and have also assisted in information network criminal activities;

(6) Where the crime committed by the person being helped causes serious consequences;

(7) Other serious circumstances.

Where the act as prescribed in the preceding paragraph is carried out and it is truly impossible to verify whether the assisted person has reached the level of a crime due to objective conditions, but the total amount involved reaches more than five times the standards prescribed in the second to fourth items of the preceding paragraph, or causes particularly serious consequences, the criminal responsibility of the perpetrator shall be pursued for the crime of assisting information network criminal activities.

Article 13 Where the criminal act committed by the person being assisted can be confirmed, but has not yet been brought to court, has not been lawfully adjudicated, or has not been lawfully held criminally responsible due to reasons such as not reaching the age of criminal responsibility, it shall not affect the determination of the crime of assisting information network criminal activities.

Article 14 Where a unit commits a crime as prescribed in this Interpretation, the persons directly in charge and other persons directly responsible shall be convicted and punished in accordance with the standards for conviction and sentencing of crimes committed by natural persons as prescribed in this Interpretation, and a fine shall be imposed on the unit.