Interpretation, Understanding and Application of Telecom Fraud

The relevant judicial interpretations of telecom fraud are as follows:

The Supreme People's Court the Supreme People's Procuratorate Ministry of Public Security

Opinions on several issues concerning the application of law in handling criminal cases such as telecommunication network fraud.

In order to punish telecommunication network fraud and other criminal activities in accordance with the law, protect the legitimate rights and interests of citizens, legal persons and other organizations, and maintain social order, this opinion is formulated in accordance with the provisions of the Criminal Law of People's Republic of China (PRC), the Criminal Procedure Law of People's Republic of China (PRC) and other laws and relevant judicial interpretations, combined with the actual work.

I. General requirements

In recent years, telecommunication network fraud crimes committed by means of communication tools, the Internet and other technical means have continued to occur frequently, infringing citizens' personal information, disrupting the order of radio communication management, concealing and concealing the proceeds of crime and the proceeds of crime, and other upstream and downstream related crimes have spread. Such crimes seriously infringe on people's property safety and other legitimate rights and interests, seriously interfere with the order of telecommunications networks, seriously undermine social integrity, seriously affect people's sense of security and social harmony and stability, and have great social harm and strong reaction from the people.

The people's courts, people's procuratorates and public security organs should, in view of the characteristics of telecommunication network fraud and other crimes, adhere to the all-round attack of the whole chain, adhere to strict and quick punishment according to law, persist in doing their utmost to recover and recover losses, further improve the working mechanism, strengthen cooperation and cooperation, resolutely and effectively curb telecommunication network fraud and other criminal activities, and strive to achieve a high degree of unity of legal and social effects.

Second, severely punish telecommunication network fraud crimes according to law.

(1) According to Article 1 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Fraud, if the amount of public or private property is more than 3,000 yuan, more than 30,000 yuan and more than 500,000 yuan by using telecommunication network technology, it shall be deemed as "large amount", "huge amount" and "extremely huge amount" as stipulated in Article 266 of the Criminal Law respectively.

Whoever commits telecommunication network fraud for many times within two years without treatment and the accumulated amount of fraud constitutes a crime shall be convicted and punished according to law.

(two) the implementation of telecommunication network fraud crime, reaching the corresponding amount standard, one of the following circumstances, as appropriate, a heavier punishment:

1. Causing serious consequences such as suicide, death or mental disorder of the victim or his close relatives;

2. Pretending to be the staff of state organs such as judicial organs to commit fraud;

3. Organizing and directing criminal gangs that commit telecommunication network fraud;

4. Implementing telecommunication network fraud overseas;

5. Having received criminal punishment or administrative punishment for telecommunication network fraud within two years;

6. defrauding the property of the disabled, the elderly, minors, students at school, people who have lost their ability to work, or defrauding the property of seriously ill patients and their relatives;

7. defrauding disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, relief, medical care and other funds and materials;

8. Fraud in the name of social welfare and charity such as disaster relief and fund-raising;

9 using telephone call system and other technical means to seriously interfere with the work of public security organs and other departments;

10. Use hidden technical means such as "phishing website" link, "Trojan horse" program link, and network penetration to commit fraud.

(3) If the crime of telecommunication network fraud is committed, and the amount of fraud is close to the standards of "huge amount" and "extremely huge amount", and it falls into one of the circumstances specified in item (2) above, it shall be respectively recognized as "other serious circumstances" and "other particularly serious circumstances" as stipulated in Article 266 of the Criminal Law.

The "close" in the above provisions should generally be above 80% of the corresponding amount standard.

(four) the implementation of telecommunication network fraud, criminal suspects and defendants actually defrauded property, convicted and punished for fraud (accomplished). The amount of fraud is difficult to verify, but under any of the following circumstances, it shall be deemed as "other serious circumstances" as stipulated in Article 266 of the Criminal Law, and shall be convicted and punished for fraud (attempted):

1. Send more than 5,000 scam messages or make more than 500 scam calls;

2. Publish fraudulent information on the Internet, with more than 5000 views.

With the above circumstances, the number reaches more than ten times the corresponding standard, which shall be deemed as "other particularly serious circumstances" as stipulated in Article 266 of the Criminal Law, and shall be convicted and punished for fraud (attempted).

The above-mentioned "making fraudulent phone calls" includes making fraudulent phone calls and answering the victim's call back. If you repeatedly dial and answer the same phone number and send fraudulent information to the same victim, the number of times you dial and answer the phone and the number of times you send short messages shall be calculated cumulatively.

If it is difficult to collect evidence of the number of phone calls and text messages sent because the criminal suspect or defendant intentionally conceals or destroys the evidence, it can be comprehensively identified according to the verified daily number of phone calls and text messages, combined with the time when the criminal suspect or defendant committed the crime, the confession of the criminal suspect or defendant and other relevant evidence.

(5) If the accomplished and attempted telecommunication network fraud reach different sentencing ranges respectively, they shall be punished according to the provisions of heavier punishment; Those who reach the same sentencing range shall be punished as fraud.

(6) When determining the starting point of sentencing and benchmark punishment, the defendant who commits telecommunication network fraud should generally choose the higher one. When determining the declared sentence, we should integrate the facts and circumstances of the whole case, accurately grasp the adjustment range of the heavier and lighter sentencing circumstances, and ensure that the crime and punishment are compatible.

(seven) the defendant who commits the crime of telecommunication network fraud shall strictly control the scope of probation and strictly grasp the conditions of probation.

(8) For the defendants who commit telecommunication network fraud, we should pay more attention to the application of property punishment according to law, increase economic punishment, and deprive the defendants of the ability to commit crimes again to the maximum extent.

Third, comprehensively punish related crimes.

(a) in the implementation of telecommunication network fraud activities, illegal use of "pseudo base stations" and "black broadcasting" to interfere with the order of radio communication, which conforms to the provisions of Article 288 of the Criminal Law, shall be investigated for criminal responsibility for the crime of disturbing the order of radio communication management. If it also constitutes a crime of fraud, it shall be convicted and punished in accordance with the provisions of heavier punishment.

(2) Whoever, in violation of the relevant provisions of the State, sells or provides personal information of citizens to others, steals or illegally obtains personal information of citizens by other means, which conforms to the provisions of Article 253-1 of the Criminal Law, shall be investigated for criminal responsibility for the crime of infringing personal information of citizens.

Whoever uses the illegally obtained personal information of citizens to commit telecommunication network fraud crimes, which constitutes several crimes, shall be punished according to law.

(3) Whoever impersonates a staff member of a state organ to commit telecommunication network fraud and at the same time constitutes fraud shall be convicted and punished in accordance with the provisions of heavier punishment.

(4) Whoever illegally occupies another person's credit card and has no evidence to prove that he is engaged in telecommunication network fraud conforms to the provisions of Item (2) of Paragraph 1 of Article 177-1 of the Criminal Law, and shall be investigated for criminal responsibility for the crime of obstructing credit card management.

(5) Whoever knowingly transfers, cashes or withdraws cash under any of the following circumstances shall be investigated for criminal responsibility for the crime of concealing or concealing what he has sinned against and the proceeds from crime in accordance with the provisions of the first paragraph of Article 312 of the Criminal Law. But there is evidence that you really don't know:

1. Assisting in the conversion or transfer of property by using illegal means such as cashing in point-of-sale terminal equipment (POS machines);

2. Help others to deposit huge amounts of cash into multiple bank accounts or frequently transfer money between different bank accounts;

3. Reuse or fraudulently use multiple credit cards, funds opened without identification to pay for settlement accounts, or reuse abnormal means such as masking cameras and disguises to help others transfer money, cash or cash;

4. Helping others to transfer money, withdraw cash or withdraw cash after providing others with credit cards and fund payment settlement accounts that are not their identity certificates;

5. Cash out at a price that is obviously different from the market through mobile phone recharge, trading game cards, etc.

Anyone who commits the above acts and conspires in advance shall be punished as a crime of * * *.

If the suspect of telecommunication network fraud has not yet arrived or the case has not been decided according to law, but the existing evidence is enough to prove the existence of the criminal facts, it will not affect the identification of the crime of concealing or concealing.

Whoever commits the above acts and constitutes other crimes at the same time shall be convicted and punished in accordance with the provisions of heavier punishment. Except as otherwise provided by laws and judicial interpretations.

(6) If a network service provider fails to perform the information network security management obligations stipulated by laws and administrative regulations, and refuses to make corrections after being ordered by the regulatory authorities to take corrective measures, resulting in the massive spread of fraudulent information or the disclosure of user information, which has serious consequences, criminal responsibility shall be investigated for the crime of refusing to perform the information network security management obligations in accordance with the provisions of Article 286-1 of the Criminal Law. If it also constitutes a crime of fraud, it shall be convicted and punished in accordance with the provisions of heavier punishment.

(7) Whoever commits the acts specified in Articles 287-1 and 287-2 of the Criminal Law constitutes the crime of illegally using and helping information networks to commit criminal activities, and at the same time constitutes the crime of fraud, shall be convicted and punished in accordance with the provisions of heavier punishment.

(eight) financial institutions, network service providers, telecom operators, etc. Anyone who violates the relevant provisions of the state and is used by telecommunication network fraud criminals, causing property losses to others, shall bear corresponding responsibilities according to law. If a crime is constituted, criminal responsibility shall be investigated according to law.

Four, accurately identify * * * and crime and subjective intent

(1) A relatively fixed criminal organization consisting of three or more persons who commit telecommunication network fraud shall be recognized as a fraud criminal group according to law. The ringleaders who organize and lead a criminal group shall be punished according to all the crimes committed by the group. Organizers, commanders, planners and key members of criminal groups are severely punished according to law.

An accessory who plays a secondary and auxiliary role in a criminal group, especially if he surrenders himself within the prescribed time limit, actively assists in the capture of the principal offender and actively assists in the pursuit, shall be given a lighter or mitigated punishment according to law.

A principal other than the ringleader of a criminal group shall be punished according to all the crimes he participated in, organized or directed. All crimes include the fact that the specific amount of fraud can be found out and the fact that the number of fraudulent short messages sent, the number of fraudulent phone calls and the number of fraudulent information page views can be found out.

(2) Many people * * * commit telecommunication network fraud, and the criminal suspect and defendant shall be responsible for all the fraud committed during the participation of fraud gangs. Those who play a major role in the criminal links they participate in can be identified as the principal offender; Those who play a secondary role can be regarded as accomplices.

The above-mentioned "participation period" starts from the time when the criminal suspect or defendant begins to commit fraud.

(3) Whoever knowingly commits telecommunication network fraud by others under any of the following circumstances shall be punished as * * *, except as otherwise provided by laws and judicial interpretations:

1. Provide credit cards, fund payment settlement accounts, mobile phone cards and communication tools;

2. Illegally obtaining, selling or providing personal information of citizens;

3. Making, selling and providing malicious programs such as Trojan horse programs and phishing software;

4. Provide "pseudo base station" equipment or related services;

5. Provide technical support such as Internet access, server hosting, network storage and communication transmission, or provide assistance such as payment and settlement;

6. When providing technical services such as number change software and telephone lines, it is found that the calling number has been changed to the number of the domestic party and government organs, judicial organs and public service departments, or the overseas users still provide services after changing to the domestic number;

7 to provide funds, places, transportation, living security and other help;

8. Help to transfer the fraudulent income and the resulting income, and cash out or withdraw cash.

The above-mentioned provisions of "knowing that others commit telecommunication network fraud" should be determined by comprehensive analysis of subjective and objective factors such as the defendant's cognitive ability, past experience, behavior times and means, relationship with others, profit situation, whether he has been punished for telecommunication network fraud, and whether he deliberately evaded investigation.

(4) Recruiting others to commit telecommunication network fraud, or making or providing fraud schemes, glossaries, voice packets, information, etc. , should be punished for fraud.

(5) If some criminal suspects are at large, but it does not affect the determination of the criminal facts of the criminal suspects and defendants who have been involved in the case, the criminal responsibility of the criminal suspects and defendants who have been involved in the case may be investigated in advance according to law.

Verb (abbreviation of verb) determines the jurisdiction of a case according to law.

(a) telecommunication network fraud cases are generally put on file for investigation by the public security organs in the crime areas. If it is more appropriate for the public security organ in the criminal suspect's residence to file a case for investigation, it may be filed by the public security organ in the criminal suspect's residence. The place of crime includes the place where the criminal act occurred and the place where the criminal result occurred.

"Crime place" includes the location of the website server used for telecommunication network fraud, the location of the website founder and manager, the location of the infringed computer information system or its manager, the location of the computer information system used by criminal suspects and victims, the dialing, sending, arriving and receiving places of fraudulent telephone calls, short messages and emails, and the implementation, preparation, starting point, passing place and destination of fraud.

"The place where the criminal result occurred" includes the place where the victim was cheated, and the actual place where the property obtained by fraud was obtained, hidden, transferred, used and sold.

(2) In the case where telecommunication network fraud was first discovered, the public security organ of the place where it was first discovered may file a case for investigation, if the fraud amount did not reach the standard of "large amount" at that time, but reached the standard of "large amount" in subsequent accumulation.

(three) under any of the following circumstances, the relevant public security organs may jointly file a case for investigation within the scope of their duties:

1. One-person crime;

2.* * * same crime;

3 * * * The criminal suspect who committed the same crime also committed other crimes;

4. The crimes committed by multiple suspects are directly related, and the merger of cases is conducive to finding out the facts of the case.

(4) For criminal cases such as multi-level chain and cross-regional telecommunication network fraud caused by online transactions, technical support, fund payment and settlement, * * * and the public security organ at a higher level can designate relevant public security organs to file an investigation according to the principle of being conducive to finding out the criminal facts and litigation.

(5) Criminal cases such as telecommunication network fraud that many public security organs have the right to file for investigation shall be filed for investigation by the public security organ that initially accepted it or the public security organ in the main crime place. Disputes should be settled through consultation in accordance with the principle of being conducive to finding out criminal facts and litigation. If negotiation fails, * * * and the public security organ at a higher level shall designate the relevant public security organ to file a case for investigation.

(6) The Ministry of Public Security may, on the basis of the principle of being conducive to finding out the facts of a crime and litigation, designate relevant public security organs to file a case for investigation.

(seven) the public security organs put on record, combined investigation, or because of disputes need to report to the approval of arrest, transfer for examination and prosecution, public prosecution and cases designated by the public security organs at higher levels, by the people's Procuratorate or the people's court where the public security organs are located.

For major difficult and complicated cases and overseas cases, the public security organ shall notify the people's procuratorate and the people's court at the same level before designating the case for investigation.

(8) The telecom fraud cases under jurisdiction are the same as criminal cases. After the fugitive criminal suspect is brought to justice, it is generally under the jurisdiction of the public security organ, the people's procuratorate and the people's court under the original jurisdiction.

Collection, examination and judgment of evidence of intransitive verbs

(1) In handling telecommunication network fraud cases, if it is really impossible to collect the victim statements one by one due to the limitation of objective conditions such as the large number of victims, the criminal facts such as the number of victims and the amount of defrauded funds can be comprehensively determined by combining the collected victim statements, verified bank account transaction records, third-party payment settlement account transaction records, telephone records and electronic data.

(2) If the evidence materials of a case collected by the public security organ through technical investigation measures are used as evidence, the legal documents approving the technical investigation measures and the collected evidence materials shall be transferred with the case, and their sources shall be explained in writing.

(3) According to international treaties, criminal judicial assistance, mutual assistance agreements or the principle of equality and mutual assistance, the overseas evidence collected by the judicial organ in the place where the evidence materials are requested, or through the international police cooperation mechanism and the cooperative evidence collection procedure initiated by Interpol, can be used as the basis for finalizing the case after verification. The public security organ shall explain the source, the extractor, the time of extraction or the provider, the time of provision, and the process of custody and transfer.

For other evidence materials from abroad, the source, provider, providing time, extractor and extracting time should be reviewed. Can prove the facts of the case, in line with the provisions of the criminal procedure law, can be used as evidence.

Seven, the handling of the property involved

(1) When investigating a telecommunication network fraud case, the public security organ shall transfer the money and goods involved and attach a list. When a people's procuratorate brings a public prosecution, it shall hand it over to the people's court that accepted the case, and at the same time put forward opinions on the handling of the stolen money and goods involved.

(two) the money involved in the bank account or the third party payment account shall be returned to the legitimate property of the victim in a timely manner. It is true that it is impossible to verify all the circumstances of the victim due to objective reasons, but there is evidence that the account was used for telecommunication network fraud crimes, and the defendant could not explain the legal source of the money. According to the provisions of Article 64 of the Criminal Law, it should be recognized as illegal income and recovered.

(3) The defendant has used the fraudulent property to pay off debts or transferred it to others. In any of the following circumstances, it shall be recovered according to law:

1. The other party collects it knowing that it is fraudulent property;

2. The other party obtains fraudulent property for free;

3. The other party obtains fraudulent property at a price significantly lower than the market;

4. The fraudulent property obtained by the other party originated from illegal debts or illegal and criminal activities.

If another person obtains fraudulent property in good faith, it will not be recovered.

the Supreme People's Court

the Supreme People's Procuratorate

Ministry of Public Security

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