Research On The Judicial Identification Of Helping Withdraw Money In Telecommunication Network Fraud

With the rapid development of information technology,telecommunication network fraud is rampant,which poses a serious threat to the country,society and people.From the traditional face-to-face fraud to the present group,industrialization of telecommunication network fraud,telecommunication network fraud presents layer-by-layer classification,the division of labor at all levels clear characteristics.Telecommunication network fraud is often hidden abroad,or use various means to hide identity,difficult to capture,judicial practice to deal with a large number of objects are the downstream of telecommunication network fraud to help the withdrawal of people,has been captured to help the withdrawal of how to judicial identification,has become the focus of this article.In order to severely punish telecommunication network fraud and related crimes in accordance with the law,the Supreme People’s Court,the Supreme People’s Procuratorate and the Ministry of Public Security jointly issued the Opinions on Certain Questions of the Law Applying to Criminal Cases,such as Telecommunication Network Fraud,in December 2016,but because the judicial organs have different understandings of the Opinions,or because of the traditional viewpoint of handling cases,and the lack of accurate grasp of the characteristics of telecommunication network fraud,the focus of the dispute is mainly on the choice of crimes to help withdraw funds.The number of crimes and the amount of crimes identified three issues.Therefore,changing the traditional concept,grasping the characteristics of telecommunication network fraud and helping to withdraw money,correctly understanding the Opinion,ensuring that the conviction is accurate and the sentence is appropriate,is the whole chain of blow,strict punishment according to law should be the general requirements.Through the analysis of three typical cases,the author summarizes the three points of contention and the problems involved,combines the views of relevant experts and scholars at home and abroad,and finally puts forward his own suggestions on the judicial identification of the telecommunication network fraud to help withdraw money.Through the study of the author believes that the criteria for distinguishing between telecommunication network fraud to help withdraw funds constitute fraud or cover up and conceal the proceeds of crime should not be too rigid,should be shifted from the traditional "pre-conspiracy" standard,clearly "knowing" the degree of the standard should be "knowing or presuming to know",the scope should be time node,divided into knowing that the telecommunication network fraud has been carried out and is about to be carried out telecommunication network fraud,combined with the telecommunication network fraud standard.On the premise of whether there is pre-conspiracy,objectively consider the situation of fraud,subjectively consider the degree and scope of knowledge,comprehensive analysis and determination of specific crimes,in practice,but also pay attention to the fraud master accomplice and cover up,conceal the crime proceeds of crime accomplice distinction,so as not to appear improper sentencing;But the punishment is not necessarily all a number of crimes and punishment,special circumstances such as the first withdrawal constitutes a cover-up,concealment of the crime of proceeds of crime,and then many times for the same person to withdraw the act,the use of several crimes and punishment will lead to heavy responsibility,a more reasonable choice is to evaluate as mixed including a crime;When the perpetrator constitutes a joint crime,adopt the principle of "partially carrying out full responsibility",but both are accomplices to the crime of upstream fraud,and this link can not fully determine that the common crime should take the difference amount standard,the part that constitutes the common crime should be based on the amount within the scope of the common crime,but the part that does not constitute the common crime should be based on the actual withdrawal amount of their own standard,the determination of the amount of the crime should be careful to guard against improper expansion.All the suggestions of the above conviction and sentencing are in order to be in line with our country’s criminal laws and regulations,judicial principles and actual situation,and the ultimate goal is to achieve the reasonableness of the penalty discretion.