Study On Judicial Determination Of Telecom Network Fraud To Help Withdrawal Behavior Conviction

According to the big data released by China Academy of justice,the number of telecommunication network fraud cases has increased year by year in recent years,with more than 30% of network crime cases involving fraud.At the same time,in the fraud cases,the network as a tool for the implementation of fraud is more and more serious.This has brought many bad influence to the society and people’s economy and life,and people’s property and even life safety have been seriously threatened.In this context,the judicial interpretation issued by the Supreme People’s court,the Supreme People’s Procuratorate and the Ministry of public security clearly stipulates that the crime of telecommunication network fraud should be strictly and severely attacked.Facing the common crime of telecommunication network fraud,because of the complex internal organization structure of the criminal group,there are some ambiguity and deviation in judicial identification of the crime of helping to withdraw money from the telecommunication network fraud in the trial practice.At the same time,the relevant provisions of the judicial interpretation of telecommunication fraud are not clear,which leads to the controversy between the theoretical and judicial circles about the nature of the helping withdrawal.Through the investigation of judicial practice of Jiangxi telecom network fraud cases involving the help to withdraw money,we can discover the regularities and characteristics in the identification of the help to withdraw money.On the whole,the judicial organs take the completion node of the crime of fraud as the standard of "beforehand" judgment,that is also the standard to distinguish the withdrawal behavior constitutes the crime of fraud or to cover up the crime of concealing the offence;In the determination of the amount of the crime,the judicial organs use the participation amount theory mostly,that is the actual amount of the withdrawal;In the identification of the principal and secondary offenders,the judicial authorities will identify them as accomplices.However,in the case,due to the different understanding of the judicial interpretation by the case handling personnel and the conflict of the theories and viewpoints of the academic community,the qualitative disputes of the withdrawal behavior,the determination of the amount of the crime,the determination of the principal and subordinate offenders and other issues have emerged,which are all existing in the judicial determination of different courts.First of all,the differences on the nature of helping to withdraw money are mainly as follows: when it is difficult to find out the subjective factors of the defendant,such as "knowing" that others commit the crime of telecommunication network fraud,whether he "conspires" with the online fraud,and when helping to withdraw money involves other crimes,there are some differences in the judicial practice of different courts.Secondly,there are different opinions on the determination of the amount of the crime of helping to withdraw money:in judicial practice,some cases regard the amount of the crime of helping to withdraw money as the total amount of the crime of the whole case,and some cases regard the amount of the crime of helping to withdraw money as the amount of the money taken by the withdrawer.There are different understandings on which theory should be adopted,"theory of total amount of crime" and "theory of total amount of crime" “ The main focus of the debate is the amount of participation.Finally,the differences on the identification of the principal and accessory of the assisted withdrawer are as follows: in some cases,the assisted withdrawer is identified as the principal offender,in some cases as the accessory,and in some cases as both the principal offender and the accessory.Taking Jiangxi judicial practice as an example,in order to effectively punish telecommunication network fraud and related assistance crimes in accordance with the law,the following aspects should be used to regulate the judicial determination of assistance in withdrawals in telecom network fraud crimes.First,it is necessary to use facts as the basis to accurately determine the judicial determination based on the facts of the whole case,including the accurate determination of the amount of crime and the accurate determination of the main accomplice.When determining the amount of crime,on the premise of comprehensive facts of the whole case,consider the position and role of each criminal in the telecom network fraud crime to identify the difference;In identifying the principal and subordinate offenders,we should identify them differently according to the characteristics of telecom fraud crime combined with specific cases.Secondly,we should take the law as the criterion to unify and perfect the applicable standards of judicial interpretation.The qualitative provisions of helping to withdraw money should be optimized to provide clear judicial explanation basis for the clear identification of the crime of helping the withdrawal;to supplement the provisions of light punishment after the sum of the crime of withdrawal is generally recognized,to standardize the judge’s discretion,to highlight the criminal principles that are suitable for the crime and punishment;to clarify the identification of accomplice of the withdrawal behavior,and to further refine the responsibility determination of the withdrawers.Thirdly,standardized the judicial identification mechanism of cases.By strengthening the reasoning of judgment documents and the guiding role of typical cases,the legal thinking,logic and judicial principles and positions of case handling should be clearly demonstrated,so as to provide reference for the front-line judicial personnel in handling cases and standardize the cases identification.