Xiao Sa: How to determine the crime of aiding and abetting in currency-related cases?

Today is the day for the trial of veteran Z in the cryptocurrency circle, and the news broke that he was convicted of aiding and abetting. As a legal professional, we must first correct the media's statement that today is just a trial, not a verdict in court. Whether Z is convicted of aiding and abetting or illegal business operations needs to wait for the first instance judgment (there is a 10-day appeal period after the first instance judgment is delivered. There are many accomplices in this case, and the probability of appeal is 90%+, so there will be a second instance). Don't think that the shoe has fallen, it is still on the parabola and has not landed.

A brief introduction to the crime of aiding others

Legal source: Article 287-2 of the Criminal Law of the People's Republic of China

Criminal subject: natural person or unit

Subjective aspect: knowing (there is a judicial interpretation in 2019)

Criminal behavior: Providing Internet access, server hosting, network storage, communication transmission and other technical support for others to commit crimes, or providing assistance such as advertising push and payment settlement, with serious circumstances.

How to determine “knowingly”?

According to the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Illegal Use of Information Networks, Assisting Information Network Criminal Activities, etc. (Fa Shi [2019] No. 15), the standard for determining knowingly is: if one of the following acts occurs, it can be determined as "knowingly" unless there is evidence to the contrary.

(1) Continue to carry out the relevant behavior after being notified by the regulatory authorities;

(2) Failure to perform statutory management duties after receiving a report;

(3) The transaction price or method is obviously abnormal;

(4) Providing programs, tools, or other technical support or assistance specifically used for illegal crimes;

(5) Frequently taking measures such as covert Internet access, encrypted communications, data destruction, or using false identities to evade supervision or circumvent investigation;

(6) Providing technical support or assistance to others in evading supervision or circumventing investigation;

(7) Other circumstances sufficient to prove that the actor was aware of the act.

Please note that in criminal cases involving the cryptocurrency world, the knowing part actually requires the suspect (perpetrator) to bear the burden of proof to a certain extent. If there is contrary evidence to prove that one did not know that the counterparty or user was suspected of committing a crime and provided assistance, it does not constitute the crime of aiding and abetting.

What constitutes a serious offense?

If the circumstances are not serious, it does not constitute the crime of aiding and abetting. So, what are serious circumstances? The judicial interpretation also gives a clear answer:

(1) Providing assistance to three or more persons;

(2) The payment settlement amount is RMB 200,000 or more;

(3) Investing RMB 50,000 or more in advertising;

(4) Illegal gains of RMB 10,000 or more;

(5) Those who have been subject to administrative penalties for illegal use of information networks, assisting in information network criminal activities, or endangering the security of computer information systems within the past two years, and who then assist in network criminal activities;

(6) The crime committed by the person being assisted causes serious consequences;

(7) Other serious circumstances.

If the acts in the preceding paragraph are committed and it is indeed impossible to verify whether the person being assisted has reached the level of a crime due to objective conditions, but the total amount of the relevant amounts reaches more than five times the standards specified in items 2 to 4 of the preceding paragraph or causes particularly serious consequences, the person shall be sentenced according to the aiding and abetting letter.

The criminalization of accomplices

my country adheres to the principle of accessory after accessory, that is, the accessory is evaluated by criminal law as the crime of the principal offender develops. However, there are also cases where the accessory becomes the principal offender, and the crime of aiding and abetting is a typical representative crime.

We have conducted legal education for cryptocurrency practitioners and written many articles on the official account to repeatedly emphasize the elements and punishment of the crime of aiding and abetting. Unfortunately, few people really listen. At present, the incidence of aiding and abetting crimes is on the rise, and it will be the focus of the law enforcement agencies in the next two years.

Therefore, we remind companies or individuals involved in cryptocurrency investment, financing and technology supply to pay attention to the business model and profit model of the investment target or user, and to include the other party's compliance operation as a unilateral termination clause in the user agreement, cooperation agreement, and investment agreement, and to cut off and stop assisting in a timely manner.