[Brief Introduction]
In February 2021, the defendants Li XX and Li XChuan were invited to Changsha by Lao Liu (another case) on the ground of helping the network platform to run sub settlement. Li XX is responsible for convening personnel to provide bank cards, telephone cards and U-shields (i.e. card main group); Give the card owner 1000 yuan/month for living expenses, 100 yuan/bank card/day for card fees, and 10 yuan/bank card/day for introducing others to provide bank cards; Contact the card owner to deal with the problems in the transfer of various bank cards. Li XChuan is responsible for convening personnel to carry out transfer and settlement operations (i.e. operation group) according to Lao Liu's instructions.
At the end of February 2021, the defendant Li XX contacted the defendant Lan XX and asked him to be solely responsible for convening the card owners, renting houses to provide working space and paying some card owners' fees. Lan XX summoned the defendant Li Xiaox, Zhang XX, Zeng XX and Sun XX to provide three bank cards, mobile phone cards U Shield and other materials, including the six bank cards of Li Xiaox and Zhang XX, were handed over to Li XX through Lan XX, and Li XX transferred the card owner's fees to Lan XX before transferring them to the card owner; Zeng XX, Sun XX and other nine bank cards and other information were directly handed to Lao Liu through Lan XX, who first transferred the fees obtained by the card owner to Lan Yinglong and then to the card owner.
On March 15, 2021, the defendant Li Xiaox summoned the defendant Tan XX to provide five bank cards and other information, and Wang X and Tan Xiaox (two of whom will handle the case separately) provided three bank cards and other information, a total of eleven bank cards and other information, which will be handed over to Li XX through Li Xiaox, who will first transfer the fees obtained by the card owner to Li Xiaox and then to the card owner.
On March 18, 2021, the defendant Tan XX summoned the defendant Yang XX to provide three bank cards and other materials to Li Xiaox, and then to Li XX. Li XX transfers the fees obtained by the card owner to Li Xiaox and then to the card owner.
From March 1 to April 12, 2021, the members of the operation team, Li XChuan, Li Xming, Li XCan and Wang Xjiao, used the bank cards collected by the card master to transfer out a total amount of 128.45552 million yuan according to the arrangement and instructions of Lao Liu; Among them, through the query of "National Telecommunication Fraud Platform", there were 11 fraud cases involving bank cards actually transferred by the operation team, with the amount of fraud being 567106 yuan.
[Case handling process]
In this case, I accepted the entrustment of the defendant Li XX's family as the defender in the investigation stage, that is, around May 2021. The suspected crime of Li XX in the investigation stage was the crime of helping information network criminal activities. After accepting the commission, I immediately applied to the investigation authority for obtaining a guarantor. The investigation authority did not agree to obtain a guarantor on the grounds that there were many people involved in the case, and some accomplices were not present in the case, which might lead to collusion of confessions, and then reported to the procuratorate for approval of arrest. At the stage of approving the arrest, the procuratorial organ approved the arrest and changed the name of the crime to change the charge of Li XX into the crime of obstructing the management of credit cards, believing that Li XX was suspected of illegally holding other people's credit cards. I was very surprised at the change of this accusation, because in this case, Li XX was not the actual holder of another person's credit card, and thought it was too far fetched to be suspected of illegally holding another person's credit card, but communication failed.
After the case entered the stage of examination and prosecution, I went to the procuratorate to copy the case file materials. After reviewing the file, I communicated again about the alleged crime of Li XX in this case. The prosecutor replied that I now have a dispute within the procuratorate about whether the alleged crime of Li XX in this case is the crime of helping information network criminal activities or the crime of buying information card. So far, the crime of this case has changed again, Moreover, the charges are more serious each time. The defender carefully studied the difference between the two charges and insisted that Li XX's behavior in this case was a typical helping behavior in the crime of helping information network criminal activities. At the same time, the other eight defendants in this case have signed a written statement of guilty plea and punishment Tan XX agreed with the charges and proposed sentencing of the crime of buying credit card information prosecuted by the procuratorate, Yang XX agreed with the charges and proposed sentencing of the crime of helping information network criminal activities during the prosecution of the procuratorate, and Li XChuan, Li Xming, Wang Xjiao, and Li XCan agreed with the charges and proposed sentencing of the crime of concealing and covering up the suspected crimes prosecuted by the procuratorate, In the whole case, only my client Li XX failed to sign a written statement of guilty plea and punishment. If Li XX recognized the crime of buying credit card information indicted by the procuratorate, Li XX was proposed to be sentenced to four years and two months in prison. After many communications with Li XX and his family, we insisted that Li XX was only suspected of helping information network criminal activities, if the crime remains unchanged, Insist on refusing to sign a plea of guilty and punishment.
In September 2021, the case was transferred to the court for prosecution, accusing Li XX of the crime of buying credit card information. It is suggested that the sentence should be five years and eight months in prison and a fine should be imposed. After receiving the indictment, Li XX was in a low mood. Li XX's family also said that they could not accept the charge and sentence, and asked me to do my best to defend Li XX for changing the charge.
At the end of November 2021, the case will be heard in the court. Both Li XX and I have no objection to the fact that Li XX has committed the crime of collecting credit cards. As the defender, I proposed in the court hearing that "buying" in the crime of buying credit card information means to buy money or material benefits from relevant persons (such as the staff of financial institutions such as banks) The act of exchanging other people's credit card information. Specifically, in this case, these bank cards involved were provided by the cardholder himself, rather than the information of the cardholder bought from others, which does not conform to the objective aspect of the crime. Moreover, this crime is a new crime in the Criminal Law Amendment (V), and the new crime also includes the crime of obstructing the management of credit cards. These specific criminal acts belong to the crime of forging credit cards and using forged credit cards to defraud. Buying other people's credit card information belongs to the upstream of the crime of forging credit cards, which aims to effectively punish and prevent credit card fraud. Specifically, in this case, the credit cards involved are all true, legal and valid credit cards opened by the card owner himself, which are voluntarily provided to others for use. There is neither enough to cause others to conduct transactions in the name of the credit card holder to cause damage to the interests of the credit card obligee, nor any act of forging credit cards, nor any crime related to forging credit cards, It did not violate the credit card management order. The crime of helping information network criminal activities is a new crime in the Ninth Amendment to the Criminal Law. On June 17, 2021, the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security jointly issued the Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Telecommunication Network Fraud (II) (hereinafter referred to as Opinion II). Article 7 of the Opinion II stipulates that for the acquisition, sale, lease of credit cards, bank accounts, non bank payment accounts The acts of Internet account passwords, online payment interfaces and online banking digital certificates with payment and settlement functions are identified as "help" acts specified in Article 287-2 of the Criminal Law, that is, the acts of purchasing, selling and leasing credit cards belong to the crime of helping information network crimes. In this case, Yang XX, who rented his own credit card, was charged with the crime of helping information network criminal activities, while Li XX, who purchased the credit card, was found guilty of buying credit card information. It was clear that neither the legal provisions nor the balance of crime, responsibility and punishment in the whole case were conducive. In addition, there was no problem of imaginative concurrence in this case, Because Li XX's behavior itself only constitutes the crime of helping information network criminal activities, not the crime of buying credit card information.
About a month after the trial ended, the presiding judge of the case contacted me on his own initiative and proposed that if Li XX was willing to pay the fine in advance, they would discuss the case with the trial committee. I keenly felt that the case was very likely to change the charges. After communicating with Li XX and his family, I paid the fine in advance.
[Case result]
On December 27, 2021, the People's Court of XX County, Hunan Province made a judgment on the case. The judgment stated that "the Court believes that the defendants Li XX, Lan XX, Li Xiaox, Tan XX and Yang XX, knowing that others use the information network to commit crimes, still provide help, pay and settle accounts for their crimes. The circumstances are serious, and their acts have constituted the crime of helping information network criminal activities. The acts of the defendants Li XX Lan XX, Li Xiao X, Tan XX, Yang XX in purchasing and selling bank cards, mobile phone cards, U-shields and other items should be identified as helping acts, so they should be convicted and punished as helping information network criminal activities. The court adopted the defense opinions of the defendant and the defender that did not constitute the crime of buying credit card information... ", and finally sentenced Li XX to the crime of helping information network criminal activities, sentenced to two years and four months of imprisonment, and fined 30000 yuan.
