Di Wu
To further punish telecommunications network fraud crime and engage in a comprehensive crackdown on all associated upstream and downstream crimes, as well as addressing the new and outstanding problems observed from judicial practices, the Supreme People’s Court, the Supreme People’s Procuratorate and the Ministry of Public Security issued the Opinions on Issues in the Application of Law in Handling Telecommunications Network Fraud and Other Criminal Cases (II) (the “Opinions”) on June 17, 2021 in accordance with the provisions of the Criminal Law of the People’s Republic of China, the Criminal Procedure Law of the People’s Republic of China and other laws and relevant judicial interpretations. The Opinions are specifically highlighted below:
I. Clarification of the place of crime and the consolidation of cases
1. The place of crime for telecommunications network fraud includes: (1) the place where the criminal act occurred and the place where the result occurred; (2) the place where the sim card, Internet traffic card, and Internet of Things card used for criminal activities were issued, sold, transferred or hidden; (3) the place where the credit card used for criminal activities was issued, sold, transferred, hidden, or used, as well as the place where the counterparty and remitted; (4) the place where the bank account or non-bank payment account was opened, sold or used, and the place where the counterparty paid and remitted the funds; (5) the place where the instant messaging messages and advertising and promotion messages were sent, received, and arrived; (6) the place where the modem pool, GOIP device, simbox, and any other hardware device used for criminal activities weresold, accessed the Internet or hidden; and (7) the place of sale and login place of an Internet account used for criminal activities.
2. The following circumstances shall be deemed to be related to crimes committed by multiple suspects and defendants, and may be consolidated for trial: (1) providing tools, technical support, and other assistance for telecommunications network fraud, as well as concealing the proceeds of crimes and income derived therefrom, thus forming a multi-level criminal chain; or (2) using the same website, communication group, fund account, and premises to commit telecommunications network fraud.
II Specific provisions on the kinds of criminal activities telecommunications fraud is involved in:
1. The “other material aspects” of fraud: There is evidence to substantiate that the perpetrator participated in an overseas fraud group or gang and engaged in telecommunications network fraud against domestic residents, with the amount connected to the fraud is difficult to verify; the perpetrator exited the country to go to the premises where fraud is committed for more than 30 days cumulatively or multiple times in a year.
2. “Illegal possession of another person’s credit card” in the crime of credit card management infringement: possession of another person’s corporate payment card without a valid reason.
3. Infringing on the personal information of citizens: Illegally obtaining, selling, or providing Internet account passwords and personal biometric information that can be used for information dissemination, instant communications and payment settlement, which satisfy Article 253-1 of the Criminal Law.
4. “Forgery of identity documents” in the crime of forging identity documents: Using the information in and replacing the photograph on another person’s identity documents for passing online authentication in registering for a SIM card, credit card, bank account, or non-bank payment account online.
5. The crime of using false identity documents or stealing identity documents: Using forged or altered identity documents, or stealing another person’s identity documents, to apply for a SIM card, credit card, bank account, or non-bank payment account which satisfy Article 280-1, Paragraph 1 of the Criminal Law.
6. Aiding information network criminal activities: A distributor of e-commerce platform prepaid cards, virtual currency, mobile prepaid cards, game point cards, gaming equipment that continues to transact with counterparties suspected to be involved in telecommunications fraud despite being specifically notified in the course of case investigation by a public security agency, and which satisfy Article 287-2 of the Criminal Law.
7. Concealing the proceeds of crime or income derived therefrom: Helping others transfer, cash out or withdraw cash by repeatedly using payment collection codes of another multiple times or of multiple persons while being aware that the amount was proceeds from telecommunications fraud or income derived therefrom; converting property or cashing out at prices significantly different from the market rates through e-commerce platforms prepaid cards, virtual currency, mobile prepaid cards, game point cards, gaming equipment, etc.; or assisting in the conversion or transfer of property for a “commission” significantly higher than the market rate in a manner that satisfies Article 312, Paragraph 1 of the Criminal Law.