Criminal Identification Standards Of The Withdrawal Behavior In Telecommunication And Internet Fraud

In the 21 st century,information technology has achieved breakthrough development.The emergence of the Internet has spatially separated the implementers and victims of fraud.Traditional fraudulent crimes,with the development of communication and information technology,have spawned a new type of criminal network fraud.In recent years,telecommunication network fraud has evolved into a collectivized and streamlined batch crime model.The criminals inside the fraud group have gradually divided into fraud information transmitters and help-seekers.The role of help-seekers in the collection of telecommunications network fraud cases is most easily caught.At the same time,the conviction and punishment are complicated by the fact that the law prescribes crimes such as frauds and other crimes such as concealment of crimes.Therefore,it is worthwhile to summarize the common types of withdrawal behaviors,analyze existing crime identification standards and judicial status,and summarize the criminal recognition problems of help-seekers that cannot be solved by existing crime identification standards.On the basis of a thorough understanding of judicial interpretation and theoretical analysis,this paper proposes criminal identification standards of the behavior of helping money withdrawal in telecommunication and internet fraud,so as to be able to clarify the criminal identification of the behavior of helping money withdrawal in telecommunication network fraud.You can divide the withdrawal behaviors that appear at the current stage into “preemptive collusion” type withdrawal behavior,“post-event notification” type withdrawal behavior,providing of bank cards and implementing of withdrawal behavior and the door withdrawal behavior.In order to respond to the growing number of crimes at the current stage the judiciary has targeted crime identification standards,especially the “Opinions on Several Issues Concerning the Application of Law in Criminal Cases such as Telecommunications Network Fraud”(below abbreviate "Opinions")has played an important role in punishing related crimes and identifying joint crimes in telecommunication fraud.However,the existing crime identification standards have problems such as unclear standards and indefiniteness,etc.Article 3 and Article 4 of the Opinions do not clearly define the subjective standards of withdrawal person constitutes a crime of fraud;this article conducted a statistical analysis of 47 judgment documents for helping money withdrawal in the country after the introduction of the “Opinions” in 2017,and summarized the existing standards of helping money withdrawal in telecommunication fraud can't solve the following questions: Does the helping money withdrawal behavior constitute the crime of fraud need a necessary condition for “fraudulence”;the effect of the subjective knowledge of the beneficiary on the criminal identification of the withdrawal behavior;The impact of the time of “conspiracy” between the withdrawal person and the fraud group in the criminal identification of the withdrawal behavior;The standards of the helping withdrawal person constitute the principal or accessory of the crime of fraud.When analysis what the criminal identification standards of the withdrawal behavior in telecommunication and internet fraud should be.First,based on the nature of the crime lies in the violation of the law benefit,the author agrees that the "lose control theory" is general standard for fraud accomplishment,but also specifically analyzes the specific points of departure for telecommunications fraud cases with different means of transfer.The victim transfers and remittances passing third-party payment platforms such as online bank were made when the victim remitted the money into an account controlled by a telecommunications fraud group.When the victim transfer using the self-service counter of bank were made when through the 24-hour repentance period.The withdrawal was made when the victim delivery the money to the door withdrawer.Second,it analyzes the objective factors in the criminal identification standards of the behavior of withdrawals.In view of the withdrawal behavior constitute the fraud should have a causal relationship with the outcome of the crime,and the withdrawal behavior itself occurs after the crime of fraud accomplishment,only the “pre-conspiracy” can strengthen the guilty convictions of the offenders,optimize the division of labor of the defrauders,making psychological and physical causal relationship with the outcome of the crime.Therefor helping the withdrawal behavior constitute fraudulent crimes need "pre-conspiracy" as a necessary condition,and "pre-conspiracy" time node should be limited to the implementation of the end of the action,not the crime of fraud accomplish.Finally,it analyzes the subjective elements of the criminal identification standards of the behavior of withdrawals.The beneficiary's subjective aspect should be classified as “be aware of the money is fraudulent proceeds” or “be aware of other people had carried out telecommunications fraud”,The one who's subjective aspect is the former commits concealing the proceeds of crime,while the latter is identical to the “be aware of the money is is the proceeds of fraud + pre-conspiracy”.Withdrawal behavior constitutes a crime of swindling requiring the perpetrator “conspiracy beforehand” with the fraud group.The content of the conspiracy can be for all matters of fraud,or it can be merely promised to help with withdrawals.The content of the conspiracy helps determine the type of accomplices who are involved in the withdrawal,The conspirators to conspiracy on all matters of fraud constitute the principal offender of the crime of fraud,the perpetrator who only promised to help with withdrawal afterwards constitutes the abettor of the crime of fraud.The above criminal identification standards conform to the structure of the crime of fraud and the basic principles of the accessory offender,and can clarify the committed relationship of downstream concealing the resulting of crime and the upstream fraud,refine and accurate the responsibility determination of the withdrawal person,avoid the heavy punishment of the withdrawal person.At the same time,the crime identification standard proposed in this paper also raises higher requirements for the identification of objective facts such as when the withdrawal has communicated with the criminal group,and what the intentional communication is.This requires the public security authorities and the judicial authorities pay attention to the collection and investigate of objective evidence during the process.