Criminal Law Evaluation Of Telecom And Online Fraud To Help Withdraw Money

With the development of information technology,new crimes with the help of network technology emerge endlessly.Among them,telecom and online fraud is particularly rampant,which brings a very serious threat to the country,the society and the people.Different from the traditional fraud crime,before because of the underdeveloped information network,fraud is mostly carried out face to face.Nowadays,telecom and online fraud,mostly with the help of network technology,is gradually collectivized and industrialized,presenting internal layers and layers of classification,and each level has the characteristics of clear division of labor.It also gives perpetrators of telecom and online fraud,some of whom hide abroad and are hard to catch,a means of hiding their identities.In practice,the target is often caught downstream to help withdraw money.So,how to help the withdrawal of criminal law evaluation,has become the focus of discussion.In order to crack down on criminal activities of telecom and online fraud,the Supreme People’s Court、Procuratorate and the Ministry of Public Security issued the Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Telecom and Online Fraud in December 2016(hereinafter referred to as the Opinions).The Opinions on Several Issues Concerning the Application of Law to Criminal Cases Involving Telecom and Online Fraud(II)(hereinafter referred to as Opinions II)was issued in June 2021,and the Standing Committee of the National People’s Congress promulgated the Anti-Telecom and Online Fraud Law of the People’s Republic of China.However,there are not many relevant regulations to help withdrawal behavior,there are deficiencies.In practice,the judicial organs have different understanding of the application of relevant laws to help the withdrawal behavior under various circumstances,and their grasp is not accurate enough.Influenced by various factors,the same case is judged differently,and there is no unified criminal law evaluation on the behavior of the withdrawal person.By analyzing relevant typical cases and summarizing the dispute focus of the case and the problems existing in the case,it is found that there are four problems worth exploring--the qualitative problem of help withdrawal behavior,the identification problem of principal and slave offenders,the number of crimes and the amount of crimes,and the opinions are given.On qualitative issues,"knowing" content,do not need to know the specific content of fraud crime,only know the specific charges can be identified as knowing;The degree of "knowing" is determined by "inclusion theory"."Advance collusion" does not have to be physically helpful,but only psychologically helpful.The time node of the withdrawal person’s participation affects the establishment of the accomplice before or after the completion of the crime of fraud.The standard of the completion of the crime of fraud is more appropriate to adopt the "out of control theory".Regarding the identification of the principal and subordinate offender among the accomplices of fraud crime,to help the remitter to distinguish whether he causes the intention to commit the crime,collates the crime,directs the crime and directly participates in the crime,and to identify the principal and subordinate offender by combining the principle of compatibility between crime and responsibility and punishment,but the truth can not be distinguished,and can also be directly sentenced according to the principle of compatibility between crime and responsibility and punishment.If more than one bank card held by the person withdrawing the money is used for criminal fraud,it shall be recognized as a crime,and the used bank card and the bank card to be used shall not be mechanically distinguished for identification.As for the amount of crime,the amount of crime of the person withdrawing should be determined according to the amount of participation.If it is impossible to verify the amount cheated by the victim one by one,the method of determining the general amount should be used,and the sentence should be reduced to a certain extent.