Judicial Determination Of Helping Withdrawal In Telecommunication Network Fraud

The frequent occurrence of telecommunication network fraud poses a great threat to the public property security.Telecom network fraud is a crime that combines the characteristics of network crime,but it is not listed as an independent crime type in the criminal law,but convicted and punished compared with the crime of fraud.In the same chain as the crime of telecommunication network fraud,in recent years,the frequency of assisted withdrawal is higher.Despite the fact that the relevant judicial interpretation of the Opinions on Several Issues Concerning the enforcement of the Act in Handling Criminal Cases such as Telecommunication Network Fraud(hereinafter referred to as the Opinions)was published in December 2016,3 As a result of the different understanding of various judicial bodies and the inadequate understanding of the characteristics of telecommunication network fraud,there are wide differences as to whether or not to establish an accomplice in the crime of fraud.Later,in 2021,the Opinions II on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Telecommunication Network Fraud(hereinafter referred to as Opinions II)was issued,which failed to resolve the differences in the understanding and application of the law in the first place.This leads to large differences in the identification of the act of assisting in the withdrawal of money in practice.Through a comparison of the plot of the disputed cases collected and the main points of the judgement,we conclude that controversial points in judicial practice focus primarily on three issues: there are different differences in the conditions of criminalization of the act of helping to withdraw money There are different subjective opinions on the same nature of withdrawal assistance and different opinions on the nature of withdrawal assistance.The fundamental reason is that the subjective elements of the act of helping to withdraw money are not clearly defined and there is no distinction between the participation nodes of the act of helping to withdraw money.In order to accurately identify the nature of the help withdrawal behavior,through the analysis of the scope of the help withdrawal behavior participating in the telecommunications network fraud,it should be clear that the "out of control theory" is the accomplished standard of the telecommunications network fraud,to avoid the situation of excessive sentencing;In order to reasonably ascertain the subjective elements of the crime of assisting in the withdrawal of money,by analyzing the conditions for the intentional establishment of complicity,it should be clear that "knowing" in the third paragraph of Article 4 of the Opinions has the element of meaning communication,and the time point of "prior" should be determined as before the end of the act,so as to clarify the subjective conviction criteria of helping to withdraw money;Finally,the perpetrator would have to establish the accomplice of fraud or the crime of concealment and concealment in order to accurately identify the crime of assisting the teller.Objectively,the causal relationship should be determined based on whether the act ends or not,but the repeated withdrawal behavior is an exception,which can meet the conditions for causal relationship determination.Subjectively,it is differentiated according to the knowledge content of the payee and whether there are elements of meaning communication,so as to prevent the imbalance between crime and punishment.