| In recent years,telecommunication and internet fraud has been raging causing severe damages to our society.In 2008,“Opinions on Several Issues of Application of Law in Handling Telecommunication and Internet Fraud Cases”(hereinafter referred to as Opinions)was issued and has provided important guidance to judicial trials.However,there still remains many problems.The definition of telecommunication and internet fraud has not been clarified yet,which contributes to the chaos of conviction.The crime of fraud cannot accurately evaluate the telecommunication and internet fraud in terms of legal interests infringement and crime constitutive elements.It is necessary to set an independent crime.The crime does not only infringe the property interest,but also disturb the social order by the behavior of mass texting and calling itself.Therefore,we should set up a new incrimination standard centered on the amount of fraud money and supplied with the amount of mass texting.It helps to solve the conviction chaos when accomplished offense and attempted offense coexist which they are separately measured by the amount of fraud money and mass texting.On the current basis of unified fraud money standard,the concrete rules of penalty measurement should be furthered unified so as to keep consistency.Telecommunication and internet fraud crimes are usually operated in collectivized and streamlined batch model.Communications and connections among members are weak which brings about challenges to the identification of joint crimes such as the issue of subjective knowledge of the beneficiary,the standard for fraud accomplishment and identification of principal offender and accessory offender.As for the standard of fraud accomplishment,this paper supports the control theory,which means crime is accomplished when the money is remitted into the account controlled by the fraud group and cannot be cancelled by the victims themselves(transfer through self-service counter can be cancelled within 24 hours).The Opinion stipulates that joint crime offender should be aware of other people's carrying out telecommunication fraud.The awareness includes conformity of important constructive conditions,unlawfulness and accountability,whose standard is too high to combat crime.The telecommunication and internet fraud group has multi-layered structure,in which the managers of down-level dens are difficult to identify as principal offender or accessory offender.Therefore,it is not required for identification in sentencing.Members of the fraud group are often captured asynchronously and sentenced in different cases.To maintain the stability of the antecedent court decision,the first captured offenders can be sentenced based upon the objective facts without identification of principal offender.Helping behavior of telecommunication and internet fraud is controversial in nature.This paper mainly discusses withdrawal behavior and the crime of helping cybercrime.Base on the control theory of accomplished offense criterion,joint crime is made when preemptive collusion exists or withdrawal person has provided bank account to offenders before the implementation of the fraud crime or offenders give their bank card to the withdrawal person first before implementing the crime.When the withdrawal person help one fraud group for many times,the first time withdrawal behavior constitutes the crime of concealing the proceeds,while the later time withdrawal behaviors constitutes the joint fraud crime.Overall,it is considered as one crime that is fraud.The crime of helping the cybercrime is new added in the 287 article of the amendment to the criminal law.This paper agrees that this crime is an independent crime but not independent sentencing rule,therefore it no longer applies for the theory of subordinate of complicity.Technical support behavior is often regarded as conduct of neutral aid,which plays a significant role in telecommunication and internet fraud.The provider of technical support can be guilt of helping the cybercrime if not joint crime. |
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