Judicial Determination Of The Act Of Assisting In Withdrawing Money In Telecommunications Network Frau

In recent years,telecom network fraud is rampant and has become a chronic disease affecting social development.In the case of telecom network fraud,the criminal links are numerous,and the internal organization is refined,thus incubating a special group of people who help withdraw money.In practice,people who help to withdraw money are usually hidden scattered all over the country,but they are the most easily caught criminals in telecom network fraud cases,and they are relatively independent groups.However,in judicial practice,there are many disputes on the identification and characterization of their behavior of helping to withdraw money.Therefore,the criminal law circle also conducts in-depth analysis and discussion on their behavior of helping to withdraw money.The author analyzes and summarizes the differences in the judgment of the behavior of helping to withdraw money in the telecom network fraud in China,and analyzes the specific reasons leading to the difference in the judgment carefully and deeply.At the same time,by comparing the judgment documents of different judgments in the same type of cases,the author studies the changes in the legal status of the behavior of helping to withdraw money in these years.The author analyzes the problems existing in the judicial practice in the three cases selected from the website of China Judicial Documents,and then studies the different characteristics of each case,analyzes the focus of the dispute,and finally discusses the determination of the crime,crime number and crime amount of the person helping the withdrawal,so as to find out the solution to the focus problem of helping the withdrawal behavior.According to the different content,this paper can be divided into three parts.In the first part,regarding the determination of charges for the behavior of helping to withdraw money,subjective and objective factors affecting the determination of charges by judicial organs can be mainly divided into two aspects:the determination of participation time node and the determination of "knowing" standard.As for the objective factor--participation time node,although there are various ways to help the withdrawal doer in practice,it can be roughly divided into three types: "before" joining,"during" joining and "after" joining.As for the subjective factor--the standard of "knowing",the standard of "knowing" which may involve the crime of fraud,the crime of helping the information network crime and the crime of covering up and concealing the crime are not the same,so the judicial organ needs to decide the specific charges according to the different standard of "knowing".The second part is about the identification of the crime number of the behavior of helping to withdraw money.In this paper,we mainly discuss in the special situation of continuous withdrawal,that is,in the front of the person who is withdrawing money to cover up and conceal the offense of the crime,and then join in the fraud activities,which constitutes the crime of fraud.At this time to help withdraw the perpetrator crime number problem is worth pondering.According to the particularity of this case,the author retorted from the legal perspective that Professor Zhang Mingkai’s representative argued that the punishment should include one crime,because the behavior of helping to withdraw money has been divided into two independent parts,that is,the first part is to cover up and conceal the offense of the crime,and the second part is the crime of fraud.There are several objective behaviors of different essence of the person withdrawing money.There are also a number of different content of the intention,of course,it should be punished with several crimes.The third part,about the criminal amount of money to help the withdrawal of the problem,in the identification of the amount of crime should be divided into the situation of discussion,the first situation is to help the withdrawal person is identified as the crime of fraud,regardless of the identity of the principal and slave offenders,should adhere to the "partial behavior of all responsibility principle",need to be responsible for the whole fraud.The second situation is that when the person helping the withdrawal is identified as the offense of covering up and concealing the crime,the person helping the withdrawal only needs to bear criminal responsibility for the actual amount of their withdrawal,which is undisputed.In addition,regarding the nature of the money in the bank card involved in the telecom network fraud,the person who helps the withdrawal will usually argue that the bank card has its own legal income,or even illegal income such as gambling,which cannot be added to the statistics of the amount of the crime of telecom network fraud.At this time,the judicial organ needs to make a specific analysis based on the facts of the case.First of all,the judicial authorities should first identify the nature of the money in the involved bank card according to the facts and evidence already mastered;Secondly,regarding the amount of crime in doubt,in-depth analysis can be made based on objective factors,such as the current situation of the bank card involved,the confession of the defendant,the confession of the accomplice and other factors.Only in this way can we avoid the simple and rough identification of a blanket,in line with the original intention of strictly cracking down on telecom network fraud,to protect the legitimate rights and interests of the defendant,so as to ensure the legality and rationality of the amount of money to help the withdrawal of crime,so as to achieve the purpose of correct conviction and sentencing.