Viewpoint: On the protection of persons whose defects are frozen in telecommunications network fraud

Abstract: In view of the particularity and difficulty of punishing telecommunications network fraud, the investigative authorities have widely implemented freezing measures to punish it. Objectively, due to the indivisibility of account flow, some people outside of illegal and criminal activities are restricted by freezing measures, forming the phenomenon of defective frozen persons. The legal obligation of the frozen person to cooperate with and tolerate freezing measures is a legal value structure shaped by legislation that prioritizes the operation of the investigative power and supplements the restoration and relief of the property rights of the frozen person. However, for the defective frozen person, he bears the obligation of tolerance due to the wrong judgment of the investigative agency, which objectively exceeds the limit of the social obligations that a legal citizen should bear, resulting in a tension between guaranteeing the operation of the investigative power and protecting the rights and interests of the defective frozen person. There should be a certain limit to the tolerance obligation of the defective frozen person, which can be judged by whether the freezing measures comply with the principle of proportionality. The phenomenon of defective frozen persons highlights many problems in my country's freezing system, which should be improved by clarifying the legal status of the defective frozen person, improving the freezing objection system, and establishing a freezing guarantee system.

Keywords: telecommunications network fraud; freezing measures; defective freezer; freezing objection; freezing guarantee

Text: Lawyer Liu Lei Source: Journal of Shanghai University of Political Science and Law (Rule of Law Forum)

1. Problem Statement

Telecom network fraud refers to the illegal criminal behavior of criminals using telecommunications, the Internet and other technologies to trick victims into transferring funds to banks or payment accounts under their control by sending text messages, making phone calls, and implanting Trojans. In recent years, with the popularization of smart phones and new media, telecom network fraud cases have occurred frequently and have become a new type of crime that widely affects the legitimate rights and interests of citizens and social life. Criminals illegally purchase bank cards and communication cards, and with the help of modern communications and Internet financial technologies, they have achieved the concealment of criminal activities, which has increased the difficulty for the country to combat and punish telecom network fraud.

In practice, the public security organs are responsible for investigating telecommunications network fraud cases. In the process of combating and punishing telecommunications network fraud, the public security organs mainly judge suspects by the flow of the victim's defrauded funds, and then freeze bank accounts to preserve criminal evidence and prevent the transfer of property involved in the case. However, the multi-level accounts downstream of the victim's account form a complex, multi-level radial flow network. Are the people behind these accounts receiving money based on legitimate reasons, or are they the fraud criminals themselves or the criminals who assist the fraud criminals in selling the stolen money? It is difficult for the public security organs to judge during the investigation stage. The public security organs usually judge suspects based on the following factors and then freeze their bank accounts: first, the distance between the downstream account and the victim's account level; second, the length of time between the time when the downstream account received the stolen money and the time when the victim was defrauded; third, the amount of deposits in the downstream account.

The above judgment method will inevitably lead to erroneous freezing. That is to say, in order to achieve the purpose of detecting crimes, a legal citizen may have all his property frozen due to the involvement of some account flows without participating in illegal crimes, and to a certain extent suffer excessive restrictions or losses on property rights and interests. For example, in April 2021, the Yiwu Public Security Department issued a "Letter to Public Security Organs Across the Country", which caused widespread concern about the account freezing of Yiwu's cross-border trade merchants: criminal gangs in telecommunications network fraud cases colluded with underground banks to directly convert the fraudulent proceeds into payment for goods and transfer them to business operators for laundering, causing a large number of trade merchants' bank accounts to be frozen by public security organs across the country. When the restrictions imposed by the freezing measures on the frozen person are flawed, how to achieve the protection of legitimate rights and interests is a realistic issue that needs to be responded to in legal practice and theoretical research.

At present, the theoretical research and system construction of freezing measures in my country mainly focus on how to achieve the effectiveness of investigative power through freezing measures. Therefore, the loss of rights and interests of persons with defects being frozen is more likely to be ignored, and thus cannot be fully respected and protected. The refinement of the concept of persons with defects being frozen will help to increase the attention of academia and practice to the rights and interests of frozen persons and enhance the fairness of freezing measures. This is exactly the requirement of the procedural law concept of rights protection in the freezing procedure of telecommunications network fraud investigation. More importantly, persons with defects being frozen are widely present in the investigative freezing process of various fields. It is only because of the particularity of telecommunications network fraud and the difficulty of punishment that persons with defects being frozen are more common. This means that through the observation of persons with defects being frozen in telecommunications network fraud, it will further feed back into the research and improvement of the entire freezing system.

2. The formation of people whose defects are frozen in telecommunications network fraud

A person whose account is frozen due to defects in telecommunications network fraud refers to a third party who has not participated in telecommunications network fraud or assisted the fraud criminals in selling the stolen goods, but whose account is mistakenly or improperly frozen by the investigation agency because the criminals use their bank accounts or payment accounts to engage in activities related to the crime. Generally speaking, in order to track the traces of the crime, preserve the evidence of the crime, and prevent the expansion of the harm of the crime, the investigation agency has the right to take freezing measures against any account suspected of illegal or criminal activities. However, if the investigation agency freezes the account of a third party who has not participated in the crime based on a wrong judgment; or the person whose account is frozen can fully prove that he has not participated in the crime and requests the investigation agency to lift the freezing measures in time or adjust the scope of frozen funds but is rejected, this will result in the situation of mistaken freezing and improper freezing by the investigation agency, resulting in property rights restrictions and rights and interests losses for the person whose account is frozen. Whether in theory or in practice, people whose account is frozen due to defects exist in all areas and the entire process of criminal investigation freezing, among which the freezing of telecommunications network fraud is the most prominent.

In the criminal procedure legal system, the concepts related to the frozen person include "criminal suspect" and "investigated person". Although the two are related to the frozen person, they cannot cover the frozen person in terms of scope, and cannot clarify and solve the problem of defective frozen persons in terms of function. Specifically, the criminal suspect refers to the party who is criminally prosecuted in accordance with the law during the investigation stage and the review and prosecution stage of the public prosecution case. The concept of criminal suspect solves the problem of how to characterize the person prosecuted before he is convicted in accordance with the law. Its theoretical basis is the principle of presumption of innocence, avoiding the excessive use of the term "criminal". The frozen person is not a criminal suspect, because the compulsory measure of freezing is aimed at the account property of the frozen person rather than the frozen person himself, and the person who has illegal property in the account of the frozen person may not be prosecuted. The investigated person refers to the social masses who are investigated and verified by the investigation agency through non-compulsory measures because they understand the case or have clues. The investigated person is not a participant in the criminal case and is not suspected of committing a crime, so he cannot be the object of compulsory measures. The frozen person is not the subject of investigation either, because the frozen person is a party to the case whose property rights are restricted due to compulsory measures. Specifically speaking of the defective frozen person, the concepts of criminal suspect and person under investigation cannot highlight the defective characteristics of the freezing measures for the defective frozen person, and therefore cannot provide support in terms of the institutional design and specific mechanism for the protection of rights and interests. (See Table 1 below)

1. The origin of the person whose defect is frozen

In telecom network fraud cases, the formation of people with defective frozen accounts is closely related to the governance of telecom network fraud. The characteristics of telecom network fraud make it difficult to punish telecom network fraud, and the investigation authorities have gradually formed an investigation and punishment system with frozen accounts as the main governance tool.

1. Basic characteristics of telecommunications network fraud

Telecom network fraud mainly presents seven major characteristics: first, the non-physical contact of the criminal behavior. The suspects can use telecommunications network tools to commit fraud without direct contact with the victims; second, the criminal methods are highly technological and change rapidly. Some suspects have begun to use big data analysis methods to organize and analyze illegally obtained personal information to tailor targeted scams for victims; third, the cost of committing crimes is low, and the coverage of criminal targets is large. Criminals can use telecommunications network tools to randomly release a huge amount of fraudulent information in a very short time; fourth, the crime is organized and There is a high degree of specialization, and the criminal gangs have clear division of labor. Some are responsible for preparing criminal tools, some are responsible for providing technology and data, some are responsible for organization and coordination, some are responsible for communicating and deceiving victims, and some are responsible for capital flow. It has already shown an industrial tendency; fifth, it is cross-regional, and transnational crime cases are frequent; sixth, criminals cleverly exploit social hot spots to commit fraud. For example, during the COVID-19 pandemic in 2020, some criminal gangs committed fraud under the guise of charitable donations and material sales; seventh, the amount involved in the criminal gangs is large, but the amount involved in a single case is small. Telecom network fraud requires the use of a large number of banks or payment accounts to transfer stolen money.

2. Difficulty in punishing telecommunications and Internet fraud

The above characteristics of telecommunications network fraud have brought great difficulties to the investigation agencies in cracking and punishing telecommunications network fraud. From the perspective of the ability of the investigation agencies: First, the difficulty of investigation and evidence collection is high. Since telecommunications network fraud has achieved non-contact and concealment through scientific and technological means, the cost of investigation is high, and it is difficult to retrieve and preserve evidence. The evidence obtained is often weakly related to the criminal behavior. Secondly, the investigation force is relatively insufficient. There is an "imbalance between the investigation force and the criminal force" in telecommunications network fraud cases. The investigation case takes a long time, the workload is large, and the staffing of grassroots public security agencies is obviously insufficient. Third, and most importantly, it is difficult to recover the stolen money. On the one hand, the criminals transfer and divide the stolen money quickly and at many levels, and often use professional money laundering teams to launder money abroad; on the other hand, the victims do not find out that they have been deceived and report the case in time. A survey shows that most victims report the case 24 hours after the transfer.

Judging from the characteristics of telecommunications and Internet fraud cases in recent years: First, fraudsters and their gangs have been hiding overseas for a long time, posing challenges to punishment, pursuit, and recovery of stolen money; second, criminals use various loopholes and channels to illegally purchase and use identity cards, bank cards, phone cards, etc. as tools, increasing the scope and pressure of the work of investigative agencies; third, the popularity of virtual currency has provided convenience for criminals to sell stolen money and launder it. Since encrypted assets cannot be located, tracked, and frozen, investigative agencies can only investigate and verify through bank account transactions to prevent the circulation of illegal funds.

3. Freezing measures: a powerful tool for investigative agencies

The ultimate goal of telecommunications network fraud is to illegally possess the victim's property, generally account funds. In order to achieve the ultimate goal, criminals need to use bank or payment accounts as tools to complete the transfer of funds. The flow of funds has become the focus of investigation and evidence collection by the investigative agency. Once the investigative agency finds clues involved in the case, it can take freezing measures on the accounts involved in accordance with the law. On the one hand, it can block the flow of funds involved in the case and prevent criminals from transferring funds; on the other hand, it can seal account information to find clues and preserve evidence for solving the case. In other words, freezing measures have become a powerful tool for investigative agencies, and this has also become a powerful means for my country to punish telecommunications network fraud. In recent years, with the help of the function of freezing measures, the investigative agency has continuously improved the systematization of telecommunications network fraud punishment: in 2016, multiple departments jointly built an emergency stop payment and rapid freezing mechanism to improve the efficiency of freezing measures; in 2020, multiple departments jointly carried out the "card cutting" operation to cut off the potential tools of telecommunications network fraud by eliminating illegal accounts in advance, so as to reduce the ability of criminals to transfer funds. In essence, it is the pre-positioning of freezing measures.

(II) Elements of a person whose defect is frozen

Freezing measures are the main tools used by investigative agencies to crack down on telecommunications network fraud crimes. Their purpose is to seize criminal clues, preserve criminal evidence, and prevent the expansion of criminal consequences such as the transfer of stolen money. However, due to the characteristics and governance difficulties of the aforementioned telecommunications network fraud, investigative agencies are greatly constrained by the complexity of the case and the limited investigative capabilities. The investigative measures taken in individual cases cannot be guaranteed to be completely correct. In practice, "police officers often seize a large number of bank cards, but the nature of the bank card fund flow is difficult to verify and identify one by one, and it is difficult for the court to determine whether the funds in the bank card are fraudulent proceeds." If the frozen person does not participate in illegal or criminal activities, but the account is frozen, this creates the issue of protecting the defective frozen person. To judge the defective frozen person, three factors need to be considered:

1. The investigative agency takes freezing measures

When an individual is subject to freezing measures by the investigation agency and becomes a frozen person, it is the first element of a defective frozen person. The frozen person may be subject to freezing measures because his specific account is related to criminal activities, or the investigation agency may have mistakenly determined that his specific account is related to criminal activities. Therefore, the investigation agency has taken freezing measures on the account involved in the case in order to further investigate and confirm whether the frozen person is involved in illegal or criminal activities. At the same time, it further collects information on other related accounts to form an investigation network chain.

2. The frozen person has not participated in any illegal or criminal activities

The second element of a defective frozen person is that the frozen person has not participated in any illegal or criminal activities, which is also a substantial element. The frozen person has not participated in any illegal or criminal activities, but his account and funds have been frozen by the investigation agency. According to Article 144 of the Criminal Procedure Law, the investigation agency may inquire into and freeze the deposits, remittances, bonds, stocks, fund shares and other properties of the criminal suspect in accordance with the regulations, and the relevant units and individuals shall cooperate. In other words, if the investigation agency determines that a specific account is suspected of telecommunications network fraud, or is required for investigation, it may implement freezing measures on the specific account, and the frozen person shall cooperate. This is the power granted to the investigation agency by the Constitution and laws, and it also imposes a certain degree of tolerance obligations on individual citizens, especially the frozen person.

3. The freezing measures exceed the general tolerance level

A frozen person who has not participated in any illegal or criminal activities has a social obligation to tolerate the freezing measures. However, this social obligation has its limits, that is, the freezing measures must be appropriate and cannot exceed the general tolerance level, that is, at a certain stage of the investigation of telecommunications network fraud, the freezing measures are found or proved to be wrong; or the scope of the freezing is too large or has not been adjusted in time. In other words, if the frozen person is obviously unrelated to the illegal or criminal activities from the beginning, or if the frozen person's account is related to the illegal or criminal activities, but only part of the funds need to be frozen for investigation purposes, then the normal freezing measures exceed their general tolerance level, and a defective frozen person is formed.

(III) Main categories of persons whose assets are frozen due to defects

Depending on whether there is an error in the subjective judgment of the investigative agency, the person whose property is frozen with defects can be divided into the person whose property is frozen with errors and the person whose property is frozen with errors. The subjective judgment of the investigative agency on whether the person whose property is frozen has committed a crime is the premise for implementing the freezing measures. The wrong judgment or inappropriate judgment of the investigative agency means that the person whose property is frozen with defects has been subjected to wrong or inappropriate freezing measures.

A wrongly frozen person refers to a third party who is subject to freezing measures because the investigative agency mistakenly judges that he or she is involved in illegal or criminal activities. If the frozen person has not participated in the crime and there is no sufficient evidence to show that his or her account is suspected of illegal activities, then the freezing measures taken by the investigative agency have no legal basis and are wrong from beginning to end. This means that the wrongly frozen person has suffered losses caused by the illegal freezing by the investigative agency, which is a special sacrifice that goes beyond the general obligation of tolerance. For example, in practice, telecommunications network fraud criminals have normal civil transactions through bank or payment accounts. If the investigative agency does not identify them and directly freezes the account of the other party to the normal transaction, this wrong judgment will excessively restrict the property rights and interests of the other party, constituting the emergence of a wrongly frozen person.

An improperly frozen person refers to a third party whose specific account is suspected of illegal or criminal activities based on certain evidence, but the investigation agency can determine that it is not necessary to continue to take freezing measures or to take full-scale freezing measures during the investigation process, but is still completely frozen. The judgment of the investigation agency that the account is suspected of illegal or criminal activities is the premise for implementing freezing measures. If in the subsequent investigation process, the investigation agency finds or the frozen person provides evidence to exclude the possibility of the account being suspected, then the freezing measures lose their basis for existence. In addition, if it is later discovered that only part of the account funds need to be frozen to achieve the purpose of the freezing measures, then freezing beyond the scope is unnecessary. The freezing measures should be lifted in a timely manner but are not lifted, and the freezing of excessive scope means that the frozen person has assumed a tolerance obligation beyond the reasonable scope. For example, in practice, telecommunications network fraud criminals mistakenly remit part of the funds to other people's accounts due to mistakes in money laundering methods, and the funds transferred by mistake should be frozen. However, if the investigation agency directly freezes all the account funds of the party who received the remittance in good faith, this improper judgment makes the party who received the remittance in good faith bear unreasonable property rights restrictions, constituting an improperly frozen person.

The significance of distinguishing between wrongly frozen persons and improperly frozen persons lies in the fact that the subjective judgment of the freezing measures of the investigative agency is different in the degree of rationality, and therefore, the degree of unreasonable tolerance obligations borne by the frozen persons is different. Correspondingly, the rights protection and relief mechanisms of the two types of frozen persons are also different.

III. Obligation of Tolerance of the Person Whose Defects Are Frozen

1. The nature of the obligation of tolerance of the frozen person

The obligation of tolerance of the frozen person refers to the legal obligation of the frozen person to tolerate and cooperate with the freezing measures taken by the investigative agency. Article 144 of the Criminal Procedure Law stipulates that relevant units and individuals shall cooperate with the freezing measures of the investigative agency. The "relevant units and individuals" here refer to the frozen person and the commercial banks, financial institutions and other units that cooperate in the implementation of the freezing measures. "For the needs of the public interest, citizens have an obligation to tolerate investigative behavior. This is the price that citizens must pay for their peaceful life." The essence of the obligation of tolerance is the arrangement made by legislation on the relationship between the investigative power and the basic rights of citizens.

The power of investigation is the power to collect evidence, expose and prove crimes, arrest criminals, and take necessary compulsory measures in accordance with the law. The power of investigation is essentially similar to administrative power, emphasizing execution and efficiency, "that is, by collecting accurate and sufficient evidence, bringing all criminals to trial as much as possible, thereby achieving the functional goal of the Constitution and the law to maintain social peace and order."

The operation of the investigative power is aimed at the basic rights of citizens such as personal and property rights. The operation of the investigative power is related to the restriction and deprivation of citizens' rights and interests. In particular, the use of various compulsory measures and special investigative measures will inevitably interfere with the basic constitutional rights of citizens. Once abused, it will inevitably lead to serious consequences of human rights violations. As Savigny said, "The actions of the police office contain the danger of infringing civil rights from the beginning, and experience tells us that police officers often go against the interests of the people involved and make such mistakes that infringe on civil rights." Therefore, it can be said that there is a natural tension between the operation of the investigative power and the protection of citizens' basic rights, which requires legislators to consider and balance when constructing the investigative system.

Freezing measures are a direct manifestation of the power of investigation and are an institutional design to ensure the smooth progress of criminal proceedings. At the beginning of the criminal procedure, the initiation of the power of investigation has the power to control the personal freedom of the suspect within a certain range and to restrict the property freedom of the suspect to a certain extent, so as to prevent the suspect from escaping and transferring the stolen money. Freezing measures are a temporary compulsory measure. The legal effect of freezing measures is that the right to use and dispose of the frozen property is temporarily restricted, and the frozen person cannot obtain benefits by using and disposing of the frozen property.

The person being frozen has an obligation to tolerate the freezing measures, which essentially means that the legislator places greater priority on ensuring the operation of the investigative power and protecting the basic rights of citizens, between the two value pursuits of ensuring the operation of the investigative power and protecting the basic rights of citizens. That is, it places priority on the public interest represented by the investigative power, and provides a corresponding supplementary mechanism for protecting the basic rights of citizens on the basis of ensuring the public interest.

In order to avoid the abuse of the priority position of the investigative power, the theory and construction of the investigative system have placed great emphasis on the legal control of the investigative power. On the one hand, it emphasizes the strict regulation of the procedures for the operation of the investigative power; on the other hand, it emphasizes the temporary and procedural nature of the investigative power, that is, the restrictions on citizens' rights by investigative activities such as freezing measures are temporary, and the restricted rights can be restored through subsequent judicial procedures or the final judgment of the court.

Therefore, in order to balance the tension between the power of investigation and the basic rights of citizens, the institutional design of "freezing measures-tolerance obligations" has formed a legal value structure that prioritizes the operation of the power of investigation and supplements it with the restoration and relief of the property rights of the frozen person. The structure of "freezing measures-tolerance obligations-restorative protection" is a whole. Once it is divided, it will inevitably lead to the alienation and expansion of freezing measures, and bring about the problem of excessive interference of the power of investigation in the lives of citizens.

(II) The particularity of the obligation of tolerance of the party whose property is frozen

For the general frozen person, the system design of "freezing measures - tolerance obligation - restorative protection" is a value structure that prioritizes the maintenance of public interests and supplements the protection of private interests. When the legal mechanism for restoring and remedying the property rights of the frozen person in the subsequent judicial procedures can operate normally, the general frozen person can get supplementary protection. Supplementary protection is generally restorative protection to lift the frozen state of property rights, so that the property rights and interests of the frozen person can be restored to the state before the freezing. Because there is objective suspicion of illegal crimes, the losses suffered by the general frozen person due to the freezing measures are attributed to their own fault to a certain extent, and therefore cannot be fully protected by law.

However, for the person whose property is frozen due to defects, the restorative protection provided by this system design and value structure is insufficient. If the person whose property is frozen due to defects objectively does not participate in illegal or criminal activities, the losses suffered by him due to the tolerance of the freezing measures should be attributed to the subjective judgment of the investigative agency and should be fully protected by law. More importantly, the person whose property is frozen due to defects bears the obligation of tolerance due to the wrong judgment of the investigative agency, which objectively exceeds the limit of the social obligations that a legal citizen should bear. Compared with ordinary frozen persons, the person whose property is frozen due to defects has a more urgent need for legal protection.

The particularity of the tolerance obligation of the person whose property is frozen due to defects is that simply restoring the original property rights of the person whose property is frozen due to defects will still cause him to suffer improper losses. This means that there should be a review mechanism in the subsequent judicial procedures to determine whether the implementation of the freezing measures is legal and legitimate, and to provide more adequate property rights protection for the person whose property is frozen due to defects. In other words, the tolerance obligation of the person whose property is frozen due to defects has its limits, and the freezing measures implemented by the investigative agency should be limited.

(III) Limits of the obligation of tolerance of the party whose property is frozen

The boundary of the obligation of tolerance is to restrict the exercise of the right of investigation in order to protect the person whose property is frozen due to defects. Specifically, in the current situation where legal norms and procedural mechanisms are not perfect, the exercise of the right of investigation should maintain a certain degree of modesty to avoid unnecessary loss of property rights and interests to the person whose property is frozen due to defects. This is the issue of the handling of the property involved in the criminal proceedings, which is related to the protection of citizens' property rights that the Constitution attaches importance to. In recent years, scholars have continuously called for the application of the principle of proportionality in criminal law legislation and criminal justice to prevent the abuse of the criminal system. Some scholars have also systematically constructed a theoretical system on how to use the principle of proportionality to regulate investigative behavior.

Since freezing measures involve the balance between state power and citizens' basic rights, the substantive legality of freezing measures can be judged based on the principle of proportionality, that is, whether the freezing measures excessively restrict the property rights and interests of the person whose property is frozen while satisfying formal legality. The general view is that the principle of proportionality consists of three sub-principles: the principle of appropriateness, the principle of necessity, and the principle of balance. It is a concept of justice and a public law theory that achieves a balance between public interests and personal interests.

1. Whether the freezing measures are appropriate

The principle of appropriateness requires that the means adopted by state power must contribute to the realization of the purpose, and at the same time, the purpose pursued by state power should be legitimate. Specifically, the purpose of the investigative agency implementing freezing measures is to obtain criminal clues, preserve criminal evidence, and prevent the expansion of criminal results such as the transfer of stolen money, and the implementation of freezing measures should objectively contribute to the realization of this purpose. If the freezing measures objectively do not contribute to the realization of the investigative function, then the freezing measures are redundant and will impose meaningless restrictions on the person whose information is frozen. This requires that when the investigative agency implements freezing measures, it should have sufficient evidence to prove the purpose and objectivity of the freezing measures.

2. Whether the freezing measures are necessary

The principle of necessity requires that the state power should choose the means that interfere the least with the rights and interests of citizens among the means that are equally effective in achieving its goals. Specifically, the freezing measures implemented by the investigative agency should be a means that interferes with and affects the rights and interests of the person whose defect is frozen the least among the means to achieve the investigative functions and purposes. In other words, if the investigative agency can achieve its functions through other less intrusive means, it should not achieve it through freezing measures. Otherwise, the freezing measures are unnecessary, and the person whose defect is frozen will suffer unnecessary losses.

3. Is the freezing measure balanced?

The principle of balance, that is, the means adopted by the state power and the purpose achieved must be in a certain proportion, which requires that the damage caused to citizens' rights by the exercise of state power should be less than the social public interest it wants to achieve. Specifically, the public interest maintained by the investigation agency in the implementation of the freezing measures and the damage to the property rights and interests of the person whose property is frozen by the freezing measures cannot exceed a certain limit. If the investigation agency only needs to freeze a part or a period of time, then freezing for too long in too large a range and for too long a period of time will exceed the balanced proportion, and the person whose property is frozen by the defect will be subject to disproportionate restrictions.

In summary, the principle of proportionality, as a standard for judging the boundaries of the tolerance obligation of the person whose property is frozen due to defects, is to judge whether the exercise of the investigative power forms a reasonable balance between public interests and personal interests. This is the essential purpose of investigative measures as a legal system. Objectively speaking, the judgment standard of the principle of proportionality is the review standard after the implementation of the freezing measures, and is the review standard that can be adopted in the subsequent judicial procedures for the application of the frozen person and the review of the freezing measures by the competent authorities. However, the review in the subsequent judicial procedures is inevitably prone to the obstruction of the delay in the discretion of the review authority, which means that in addition to the review standards, it is still extremely necessary to construct more substantive rights protection systems and channels in the investigation process.

IV. Protection of the Rights of Persons Whose Frozen Accounts Are Frozen Due to Telecommunications Network Fraud Defects

In recent years, telecommunications network fraud crimes have shown a "spreading virus" situation, with the number of cases increasing by an average of about 34% per year. Due to the complexity and difficulty of punishing telecommunications network fraud, freezing measures have been widely used in special operations such as "Cloud Sword-2020", "Card Cutting" and "Great Wall No. 2". While punishing telecommunications network fraud, we should pay more attention to the protection of the rights of people whose property is frozen due to defects, and improve my country's investigation and freezing system, so as to achieve a balance between maintaining public interests and protecting private interests. Investigation measures are closely related to the basic rights of citizens protected by the Constitution and laws, and should be strictly implemented in accordance with the law. The protection of the property rights of non-parties is not only reflected in the fact that their property may be included in the scope of execution in the execution procedure, but also in the fact that when the executed property is insufficient to repay, the priority enjoyed by non-parties is not guaranteed, or non-parties have obtained the property included in the scope of execution in good faith. However, the protection provided by existing laws is based on the consideration of general frozen persons. There are some problems in protecting people whose property is frozen due to defects, which should be further improved.

1. Ways to protect positive law

From the perspective of the judicial process, there are three main ways for positive law to protect frozen persons: when implementing investigative freezing measures, legislation prohibits repeated freezing to regulate the exercise of investigative power; in the frozen state, the investigative agency shall take the initiative to unfreeze the frozen property that is not related to the case, and the frozen person may also appeal for unfreezing; at the final end of the judicial process, the frozen person who has suffered losses may apply for state compensation.

1. Repeated freezing is prohibited

Article 144, paragraph 2 of the Criminal Procedure Law stipulates the principle of prohibiting repeated freezing, which prohibits more than two investigative agencies from implementing freezing measures on the same property of the same frozen person at the same time. The principle of prohibiting repeated freezing is a direct restriction on investigative power and freezing measures. Freezing is a temporary restriction on property rights. If the same property is subject to multiple freezing measures at the same time, it is equivalent to the property being divided in disguise before the end of the judicial procedure. If the freezing measures should be lifted in the end, the complexity of the procedures and the length of time for lifting multiple freezing measures will inevitably cause excessive damage to the frozen person.

2. Freeze appropriately

The Criminal Procedure Law does not explicitly stipulate the principle of appropriate freezing, but it has been reflected in the Provisions on the Application of Seizure and Freezing Measures by Public Security Organs in Handling Criminal Cases. The Provisions clarify the connotation and mechanism of the principle of appropriate freezing from two aspects: (1) Article 3 of the Provisions stipulates that property that is not related to the case shall not be frozen; (2) Article 27 of the Provisions stipulates that funds shall not be frozen beyond the amount involved in the case.

3. Freeze lifted

As mentioned above, freezing is a temporary restriction on property rights and will be subject to evaluation and adjustment in subsequent judicial procedures. If the conditions for the application of freezing measures have disappeared, then the freezing measures should be lifted. There are two situations for lifting freezing measures: (1) Active lifting as provided for in Article 145 of the Criminal Procedure Law, that is, if it is found in the judicial process that the frozen property is not related to the case, it should be lifted within three days; (2) Lifting by appeal as provided for in Article 117 of the Criminal Procedure Law, that is, if the person whose property is frozen and the interested party fail to lift the freezing measures as required by the investigative agency, they may appeal to the agency.

4. State Compensation

There are two situations in which the person whose property is frozen can apply for state compensation for freezing measures: (1) the relevant state organs and their staff illegally implement freezing measures as stipulated in Articles 4 and 18 of the State Compensation Law; (2) the freezing measures or the lifting of freezing measures as stipulated in Article 36 of the State Compensation Law cause losses to the frozen property. Both situations are for situations in which property damage is caused by illegal freezing.

2. Problems with existing mechanisms of protection

1. Discretionary issues regarding (un)freezing

The Criminal Procedure Law stipulates that the conditions for the investigative agency to implement freezing measures are "based on the needs of investigating crimes" and the conditions for lifting freezing measures are "proven to be irrelevant to the case". In essence, the legislation gives the investigative agency the discretion to implement and lift freezing measures through these uncertain legal concepts. On the one hand, for the investigative agency, the state function of combating telecommunications network fraud activities naturally takes precedence over the precautions of avoiding excessive interference in the property rights and interests of citizens. The investigative agency is more inclined to take the initiative to play the role of freezing measures in punishing telecommunications network fraud. On the other hand, although the frozen person is indeed irrelevant to the property case, if the suspect is eventually determined to be a criminal, lifting the freeze does not exclude the possibility that the frozen person will transfer property, and the victims of telecommunications network fraud will not receive adequate relief. Therefore, in practice, the investigative agency generally takes a conservative attitude towards lifting the freeze when the conditions are met, and the specific department heads and case handlers dare not take responsibility and will not easily lift the freeze to avoid expanding the consequences of the crime. The investigative agencies' enthusiasm in implementing freezing measures and their conservative attitude towards lifting the freeze mean that it is difficult for people whose identities have been frozen due to telecommunications network fraud to protect their own rights and interests by appealing for the lifting of the freeze, unless there is a mechanism to dispel the investigative agencies' concerns.

2. Participation in the freezing procedure

: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : "my country's traditional concept tends to emphasize punishment and neglect protection. The protection of property rights of non-criminal litigation has not been fully paid attention to. It is reflected in the legislation that the non-participants in the procedure are not fully granted, and the relief channels for damage to property rights and interests of non-participants are not smooth." At present, the freezing procedure excludes the participation of the frozen person, let alone the issue of equality in the freezing procedure. This obviously violates the modern rule of law concept of procedural justice, which is not conducive to the objective and reasonable content of the frozen person, and is not conducive to the sincere acceptance and convincing of the frozen person's freezing measures and even the authority of the national legal system.

3. The problem of the lack of compensation system

It is generally believed that state liability is mainly composed of state compensation liability and state compensation liability. Among them, state compensation liability is for the damage caused by the illegal act of power, while state compensation is for the damage caused by the legal act of power. Influenced by the tendency of stateism, on the one hand, if the investigative agency implements a legal freezing, that is, if the investigative agency implements a freezing measure on the property involved in the case and causes damage to the frozen person, whether appropriate compensation should be given, and the legislation is in a blank state; on the other hand, how to judge whether the investigative agency's determination of the property involved in the case is correct, it is difficult to challenge the frozen person. Therefore, the probability of a person being frozen person being frozen is greatly increased. Unlike the person being frozen, the tolerance obligations borne by the person being frozen obviously exceed the level of general tolerance. If there is no way to obtain compensation, it will violate substantive justice.

4. One-sided issue of compensation standards

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(III) Suggestions for improving my country's freezing system

1. Clarify the status of the person who is frozen by flaws

For a long time, my country's criminal prosecution system has been influenced by stateism, and the construction of the judicial system has reflected the color of "state power as the core". In the value pursuit of punishing crimes and protecting human rights, legislation, law enforcement and judicial system have always regarded punishing crimes as a more priority value choice. However, in a modern country ruled by law, the authority of the state power and legal system needs to be dependent on the recognition of citizens. "If the government does not take rights seriously, it cannot take the law seriously." The legal status and rights protection of frozen people need to be systematically strengthened through legislation. This is not only one of the fundamental purposes of national legislation and criminal prosecution, but also a way to improve the law and reform the system.

Since the general frozen person is different from the person who is frozen, it is obvious that the same "freezing measures - tolerance obligations - restorative protection" is applied. Therefore, the status of the person who is frozen by the defect should be clarified through legal amendments, and the procedural mechanism of the freezing system should be rebuilt on the basis of distinguishing the person who is frozen by the general frozen person and the person who is frozen by the defect. However, it is worth noting that it is difficult to make systematic legal amendments to the freezing system. Therefore, it is still a long way to go to clarify the status of the person who is frozen by the defect through legislation. In this process, it can be gradually realized by improving the procedural mechanism of the freezing system.

2. Improve the freeze objection system

The primary issue in improving my country's freezing system is to respect and protect the procedural rights of the frozen person. This article suggests that the Criminal Procedure Law should clearly stipulate the freezing objection system through amendments: (1) The investigative agency shall inform the frozen person of the decision, content and basis of the freezing measures to the frozen person, and inform the frozen person that the frozen person may raise objections to the investigative agency that implements the freezing measures within one month of the freezing measures; (2) In response to the objection raised by the frozen person, the investigative agency shall investigate within one week. If the frozen person's objection is established, the freezing measures shall be lifted or adjusted. If the objection is not established, the frozen person shall be informed of the reason for the rejection of the objection; (3) The frozen person may file a complaint to the higher-level investigative agency within one month of the objection being rejected.

The freeze objection system has the dual meanings of substantiveness and procedurality. In essence, the frozen person can directly raise objections to the freeze measures and challenge the legality and rationality of the freeze measures through facts and evidence. Procedurally, the frozen person has participated in the freeze procedures and debated with the investigative agency in a reciprocal way. The right to express his opinions is respected, which is also conducive to increasing citizens' convictions with judicial justice and national laws.

Since freezing measures are widely used in the punishment of telecommunications network fraud, the system of freezing objections is improved, and people who are frozen in telecommunications network fraud are promptly informed of frozen information, and provide evidence to communicate with the investigative agency will help improve the legality, rationality and correctness of freezing measures and avoid and reduce the occurrence of defects frozen in persons.

3. Establish a freezing guarantee system

The investigation agency's judgment on the freezing measures is that the frozen property is the property involved in the case, and after subsequent trial in accordance with the law, there is a possibility of being used to return the victim and confiscating the state treasury. Therefore, the disposal and circulation of the property involved should be restricted. For the frozen person, since the frozen property is mainly monetary property, the impact of the freezing is not only a temporary restriction of property rights, but also includes indirect losses that cannot be realized in circulation due to restrictions. In addition to the existing national compensation and compensation standards, there is also the problem of indirect losses being difficult to estimate. The person who has defects cannot obtain compensation or compensation for the indirect losses. Therefore, a mechanism that can not only ensure that the property involved is fully recovered and protect the frozen person to maximize the value through transaction activities.

This article believes that the concept and mechanism of guarantee for preservation in civil litigation should be introduced to establish a freezing guarantee system. Freezing measures in criminal litigation have similar purposes and functions as the preservation measures in civil litigation. In terms of purpose, they all take preventing the final judgment from being unable to be enforced or the damage result is expanded as the starting point; in terms of function, they objectively impose temporary restrictions on property rights. In civil litigation, "the main purpose of guarantee for preservation is to prevent the respondent from suffering losses due to wrongly ruling for preservation." Criminal litigation procedures should learn from the concept of guarantee for preservation and establish a freezing guarantee system, allowing the frozen person to apply for adjustment or lift the freezing when providing the same guarantee as the amount of frozen property. Establishing a freezing guarantee system can not only realize the pursuit of maximum value in full circulation, but also prevent the risks caused by errors in adjustment or lifting the freezing.

Establishing a freezing guarantee system is of great practical significance for the protection of people who are frozen by telecommunications network fraud. When it is difficult to systematically change the existing legislation and freezing system, exploring and implementing a freezing guarantee system is an important way to protect people who are frozen by defects. Compared with general frozen people, the property rights restrictions of people who are frozen by defects obviously exceed the general tolerance level. Allowing the frozen person to apply for adjustment or lift the freezing when providing guarantees can achieve an appropriate balance between protecting the effective operation of the investigative right, protecting the rights and interests of criminal victims, and promoting the pursuit of maximizing the property rights and interests of defects.

Conclusion

The person who is frozen in telecommunications network fraud is not only not a criminal or the relevant responsible person, but is a victim of telecommunications network fraud. When the investigation agency implements freezing measures in accordance with the law, it should pay attention to strengthening respect and protection of the person who is frozen. The property freedom of citizens and the personal freedom of individuals are the necessary meaning of freedom. Personal freedom should not be valued but property freedom should be neglected. Therefore, in the fight against and governing telecommunications network fraud crimes, the operation of the investigation and protection of the rights and interests of the person who is frozen in defects is not contrary to the contradictory. This article believes that legislation should be used to clarify the legal status of the person who is frozen in defects, improve the investigation and freezing procedures, and set up relief paths after the damage to rights, protect the right to know and appeal of the person who is frozen in defects, and realize the organic unity between protecting the operation of the right to investigate and protecting the rights and interests of the person who is frozen in defects.