Notice on the Issuance of the Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Criminal Cases Involving Cross-Border Telecommunications Network Fraud, etc.
Higher People's Courts, People's Procuratorates, and Public Security Departments (Bureaus) of Provinces, Autonomous Regions, and Municipalities directly under the Central Government, Military Courts and Military Procuratorates of the People's Liberation Army (PLA), the Xinjiang Uygur Autonomous Region (XUAR) Higher People's Court of the Production and Construction Corps (PCC) Branch, and People's Procuratorate and Public Security Bureau of the XUAR:
In order to comprehensively implement Xi Jinping's thought on the rule of law, and severely punish cross-border telecommunication network fraud and other criminal activities in accordance with the law, the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security jointly formulated the Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Cross-border Telecommunication Network Fraud and Other Criminal Cases, which is hereby issued, and please conscientiously implement and execute it in light of actual practice. Please report to the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security in a timely manner on new situations and problems encountered in the implementation of the Opinions.
Supreme People's Court Supreme People's Procuratorate Ministry of Public Security
June 26, 2024
Supreme People's Court Supreme People's Procuratorate Ministry of Public Security
Opinions on Several Issues Concerning the Application of Law in Handling Criminal Cases of Cross-border Telecommunications Network Fraud and Other
Opinions on Several Issues of Applicable Law
In order to severely punish cross-border telecommunication network fraud and other criminal activities in accordance with the law, according to 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 and other provisions, combined with the work of the actual situation, the development of this opinion.
I. General requirements
1. Cross-border telecommunication network fraud and other criminal activities seriously infringe upon the safety of people's lives and property, and are extremely harmful to society, with strong reactions from the people. The people's courts, people's procuratorates and public security organs shall adhere to the people-centered approach, adhere to systematic governance, governance in accordance with the law, governance at the source, punish severely in accordance with the law, make every effort to recover stolen goods and salvage damages, and resolutely safeguard the vital interests of the people. According to the law, focusing on cracking down on criminal groups and their organizers, planners, commanders and key members; focusing on cracking down on organizations that provide shelter for criminal activities such as cross-border telecommunication network fraud; focusing on cracking down on criminal groups committing such crimes as intentional homicide, intentional injury, kidnapping, rape, forced prostitution, and unlawful detention; and focusing on cracking down on recruiting members of cross-border telecommunication network fraud and other criminal groups that commit the crime of organizing and transporting other people to smuggle Criminal acts of organizing and transporting others to sneak across the state (border) border by recruiting members for criminal groups such as cross-border telecommunications network fraud.
2. The people's courts, people's procuratorates, and public security organs shall handle cases in strict accordance with the law, adhere to the evidence-centered approach, implement the principle of adjudicating on evidence, comprehensively collect and examine evidence, strictly prohibit the use of torture to extort confessions and the use of illegal means such as threatening, enticing, or cheating to collect evidence, fully safeguard the procedural rights of criminal suspects and defendants, accurately determine the facts, correctly apply the law, and handle the case in a fair manner in accordance with the law.
3. The people's courts, people's procuratorates and public security organs shall conscientiously implement the criminal policy of mutual leniency and severity, giving full consideration to the consistent performance, subjective viciousness and personal danger of the perpetrators, and shall ensure that they are treated differently, that leniency and severity are applied in equal measure, and that penalties are appropriate to the crimes committed. For criminals who should be the focus of the crackdown, the overall severity of the punishment should be adhered to, with strict control over the scope of bail, strict control over the criteria for non-prosecution, strict control over the scope and range of application of leniency, mitigated punishment or probation, and the full use of property penalties, so as not to allow criminals to benefit economically. For those who voluntarily surrender to the police, plead guilty and accept punishment, actively return stolen goods and make restitution, and actively cooperate with the case-handling authorities in tracking down the relevant crimes, apprehending the prime movers and key members, and recovering the property involved in the case, as well as minors, schoolchildren, and those who have been enticed or coerced into participating in the commission of a crime, they are adhered to the principle of leniency, and lenient penalties are imposed in accordance with the law.
II. Punishing cross-border telecommunications network fraud and other crimes in accordance with the law
4. A criminal group shall be deemed to be a criminal group if it manages and controls criminal groups to commit cross-border telecommunication network fraud, extortion and other criminal activities through the provision of criminal venues, conditions of security, armed shelter, personnel management and other means, draws dividends or collects the relevant fees, and has a clear organizer and leader, and the backbone members are basically fixed, in accordance with the provisions of paragraph 2 of article 26 of the Criminal Law.
If the organizer or leader is not present in the case or is not held criminally liable due to legal circumstances such as death, it shall not affect the identification of the criminal group.
5. For cross-border telecommunications network fraud, extortion and other crimes, where it is impossible to identify the victims due to objective limitations, the amount of the crime may be comprehensively determined on the basis of evidence such as account transaction records, chat records of communication groups and other evidence, combined with the statements of the suspects and defendants.
For the criminal amount of the criminal group, according to the criminal group from its management and control of the criminal gangs into dividends or charges the amount and manner of commutation. If the amount cannot be discounted, the amount of dividends or fees can be recognized as the amount of the crime.
6. Where a criminal suspect or defendant participates in a criminal group or criminal gang and commits criminal acts such as telecommunication network fraud and extortion, and the amount of the crime committed by the criminal group or criminal gang has been verified, but it is not possible to ascertain the specific amount of the crime committed by the criminal suspect or defendant due to objective conditions, comprehensive consideration shall be given to the position and role of the suspect or defendant in the criminal group, the criminal gang, the time of his or her participation, the relevance of his or her involvement in the criminal facts, the subjective malice and the personal danger. as well as the subjective viciousness and physical danger, etc., to accurately determine his culpability.
7. If a criminal suspect or defendant participates in an overseas fraudulent criminal group or criminal gang and commits a criminal act of telecommunication network fraud, and the criminal amount of the criminal suspect or defendant and the criminal group or criminal gang in which he or she participates is difficult to prove, but the criminal suspect or defendant has traveled out of the country to overseas criminal dens for a cumulative period of more than 30 days in one year, or has traveled out of the country to overseas criminal dens for many times, the criminal suspect or defendant shall be deemed to be guilty of “other crimes” as stipulated in Article 266 of the Penal Code. Other serious circumstances” as stipulated in Article 266 of the Criminal Law, and shall be held criminally liable for fraud according to the law. However, unless there is evidence to substantiate that the person has left the country to engage in legitimate activities, the person shall be held criminally liable for the crime of fraud.
8. The “criminal den” stipulated in Article 7 of this Opinion refers to the place of operation for the implementation of criminal activities of telecommunication network fraud. The entire building, enterprise park, industrial park, development zone, etc., which is constructed for the purpose of recruiting criminal gangs of telecommunication network fraud, or in which mainly criminal gangs of telecommunication network fraud are stationed, can be recognized as a “crime den”.
The “outbound travel to an overseas crime den for a cumulative period of 30 days or more within one year” shall be calculated from the time when the criminal suspect or defendant actually joins the overseas crime den. If it is difficult to ascertain the exact time when the suspect or defendant actually joined the offshore crime den, but it can be ascertained that he or she left the country illegally, the time of departure may be used as the starting point, and reasonable travel time shall be deducted. Where it is impossible to ascertain the time of departure due to objective conditions, a comprehensive determination may be made by combining the suspect's or defendant's movements and trajectories with the time of his or her last appearance in the vicinity of the border, after deducting a reasonable amount of time spent on the road. Reasonable travel time may be determined by reference to the time required to take public transportation. If the suspect or defendant puts forward a reasonable defense regarding the travel time and it is found to be true, it shall be accepted.
9. The identification of criminal suspects and defendants who have committed the act of smuggling across the border may be based on their entry and exit documents, records of entry and exit, whereabouts, and certificates of handover and acceptance of persons, combined with the comprehensive identification of criminal suspects and defendants' confessions.
Where the suspect or defendant applies for an entry/exit document on the grounds of traveling, visiting relatives, studying, working, doing business, etc., but goes to a den of telecommunication network fraud, extortion, etc., the suspect or defendant belongs to the category of those who fraudulently obtain entry/exit documents with false reasons for entry/exit, as stipulated in Article 6(4) of the Interpretation of the Supreme People's Court of the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws to Handling Criminal Cases of Obstruction of National (Border) Border Management. The use of entry and exit documents fraudulently obtained for false reasons to enter or leave the country (border) shall be recognized as an act of smuggling across the country (border).
10. Any one of the following circumstances shall be recognized as “association” as stipulated in Article 5(2) of the Interpretation of the Supreme People's Court of the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Obstruction of the State (Border) Border Control:
(1) The criminal suspect or defendant discusses or assists each other by actual behavior regarding the route, mode of transportation, place of stopover, and ways of avoiding inspections for sneaking across the state (border) border;
(2) The criminal suspect or defendant pays for the transportation, accommodation and other expenses incurred in the process of sneaking across the state (border) border on behalf of each other;
(3) A criminal suspect or defendant is responsible for contacting the criminal group or individual who organizes or transports the smuggling across the state (border) border and leads other people to smuggle across the state (border) border together.
11. If the identity of the victim can be ascertained, but the victim cannot be questioned face-to-face due to objective constraints, the victim may be questioned by more than two case officers by video or other remote means, and a transcript shall be made on the spot, and after the victim has checked that it is correct, the case officer shall sign each page to confirm it and indicate that it is consistent with the content of the questioning. The entire process of questioning, checking the transcript and signing shall be synchronized with audio and video recording. Questioning process with the participation of an interpreter, the interpreter shall be in the interrogation transcript page by page signature confirmation.
12. Where a criminal suspect or defendant argues that he or she was coerced to commit telecommunication network fraud, extortion and other criminal activities outside the country, the clues or materials provided by the suspect or defendant shall be investigated and verified, and a comprehensive determination shall be made as to whether he or she is “coerced to participate in the crime” as stipulated in Article 28 of the Criminal Law.
If a criminal suspect or defendant is able to maintain free contact with the outside world during the period of committing criminal activities such as telecommunication network fraud and extortion outside the country, or if he or she is coerced and then actively commits the crime, he or she shall not be recognized as a coerced accessory in general.
13. If a person who commits cross-border telecommunication network fraud, extortion or other crimes returns to his home country to surrender voluntarily or after being persuaded by his relatives or friends to do so, and truthfully confesses to his crimes, he shall be deemed to have surrendered, and shall be subject to a lighter or mitigated punishment in accordance with the law. Among them, those who have committed less serious crimes may be exempted from punishment.
14. If a criminal suspect or defendant commits a crime such as telecommunication network fraud or extortion outside the country, and the circumstances of the crime are minor, and if he or she is not prosecuted or exempted from criminal punishment in accordance with the provisions of the law, he or she shall be subject to administrative punishment by the competent authorities in accordance with the law.
III. Comprehensively strengthening the recovery of stolen goods and losses
15. The public security organs, the people's procuratorates and the people's courts shall conduct comprehensive investigations and reviews of the property status of cross-border telecommunication network fraud, extortion and other criminal syndicates, criminal gangs and their members, and shall, in accordance with the law, make timely inquiries, seize, impound and freeze the funds in the accounts involved in the cases, as well as the real estate, vehicles, precious metals and other property involved in the cases. With regard to property involved in cases that have been seized, detained or frozen in accordance with the law, the public security authorities shall comprehensively collect evidence and materials proving the source, nature, ownership and value of such property, as well as whether or not it should be seized, confiscated or ordered to be refunded, and transfer such evidence and materials along with the case when it is handed over for examination and prosecution. The people's procuratorate shall examine the evidence and materials of the property involved in the case, and give its opinion on the handling of the case when instituting public prosecution. The people's court shall deal with the property involved in the case in its judgment.
16. In cases of telecommunication network fraud in which the criminal suspect or defendant has fled abroad, if the criminal suspect or defendant fails to appear in the case after being wanted for one year, or if the criminal suspect or defendant dies, his or her unlawful proceeds and other property involved in the case shall be confiscated in accordance with legal procedures.
