The Supreme Court rendered the 107-Shang-Su-191 Civil Decision of December 14, 2018 (hereinafter, this “Decision”), holding that whether a bank account provider commits an offense of aiding a fraud should be determined by considering the situation of a specific case based on strict evidentiary rules, and an indefinite intent to aid the commissioning of a fraud cannot be derived simply based on the experience of ordinary people.
According to the facts underlying this Decision, the prosecutor indicated in the indictment that the Appellant or the Defendant (hereinafter, the “Defendant”), who should have been able to foresee that the bank book, ATM card and password issued by a financial institution he provided to another person for use were very likely to be used as tools to commit a fraud, still provided the bank book, ATM card and password for a bank account he had applied for to a certain member of a fraud gang whose true name and age were unknown, out of an intent to aid the commissioning of a fraud. The bank book, ATM card and password were provided to such a fraud gang for withdrawal, bank transfer and remittance. Therefore, the Defendant was prosecuted for an offense of aiding a fraud since he had aided the criminal organization to defraud others.
According to this Decision, fraud gangs have innovated their fraud schemes constantly. Even though governments, financial institutions and the media have greatly covered and reported such incidents, fraud cases still take place quite often even with victims who have high educational backgrounds, good income or significant social experience, not to mention that some victims are defrauded for reasons that go beyond common sense. However, it has been more difficult for a fraudster to commit a fraud by collecting dummy bank accounts through traditional means. Therefore, cheating cash strapped people to hand over their bank account information under the pretext of beautifying their accounts to facilitate their bank loans has not been unusual in recent times. For people with relatively less social experience or in dire need of money, it is a rare opportunity for them to receive help from other people to secure a loan to address their financial difficulties just by paying a small handling fee. Therefore, it is indeed quite possible that they become careless in agreeing to hand over their bank accounts, bank books, ATM cards and passwords to others. In addition, the caution or risk assessment of ordinary people concerning social events often vary from person to person as evidenced by the fact that there are still many defrauded victims even though fraud schemes have been greatly communicated by the government and reported on a large scale by the media. Therefore, the establishment of an offense of aiding a fraud certainly should not be determined solely by considering whether the Defendant’s account information was handed over to another person or whether such information was used by a criminal organization. Instead it is also necessary to consider if the reasons for the Defendant’s provision of account information are acceptable and to generally take into account the actor’s past behavior, educational level and financial status as well as the subjective and objective matters stated by the actor, and a determination should be based on logical and empirical rules. Therefore, whether a person who provides bank account information to another person is involved in offenses of aiding a fraud and money laundering should still be examined based on the circumstances of individual cases pursuant to strict evidentiary rule, rather than merely on the knowledge and experience of objective ordinary people or even by the experience of judicial practitioners. In addition, it is not appropriate to directly infer that an actor in an individual case should be on the same level of alert in order to reach the conclusion that the actor must have an indefinite intent to help others commit a fraud by providing his/her account information to facilitate the commissioning of a crime.
It was further pointed out in this Decision that since the Defendant in this case did have a strong need for taking out a loan, it is not without question whether he could think rationally as ordinary people at that time. The prosecutor did not produce any evidence to prove that the Defendant could receive any benefit from the act of providing the account information at issue, which is apparently different from the circumstances where account information is typically sold or lent for rewards. Moreover, the Defendant did not hand over the bank book, ATM card and password for the account at issue before contacting the other party and believing that such other party could successfully obtain a loan for him. Therefore, it is indeed difficult to elect to conclude that the Defendant had had an indefinite intent to aid the commissioning of a fraud and money laundering at the time of the handover. Therefore, since the probability that the Defendant was cheated to make such handover because he had intended to take out a loan could not be ruled out and a reasonable doubt obviously existed, the Defendant should certainly be acquitted based on the principle of presumed innocence.