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Four Model Cases regarding Crimes of Illegally Utilizing the Information Network and Crimes of Assisting in Information Network-Related Criminal Activities Published by the Supreme People's Court [Effective]
最高人民法院发布4起非法利用信息网络罪、帮助信息网络犯罪活动罪典型案例 [现行有效]
【法宝引证码】

Four Model Cases regarding Crimes of Illegally Utilizing the Information Network and Crimes of Assisting in Information Network-Related Criminal Activities Published by the Supreme People's Court 

最高人民法院发布4起非法利用信息网络罪、帮助信息网络犯罪活动罪典型案例

(October 25, 2019) (2019年10月25日)土豪我们做朋友好不好

Table of Contents 目录
I. People v. Huang Jieming, Tao Shengxin, et al. for illegal utilization of the information network 一、黄杰明、陶胜新等非法利用信息网络案
II. People v. Tan Zhangyu, Zhang Yuan, et al. for illegal utilization of the information network 二、谭张羽、张源等非法利用信息网络案
III. People v. Zhao Rui for providing assistance in information network-related criminal activities 三、赵瑞帮助信息网络犯罪活动案
IV. People v. Hou Boyuan, Liu Yuqi, et al. for providing assistance in network-related criminal activities 四、侯博元、刘昱祈等帮助信息网络犯罪活动案
 

一、黄杰明、陶胜新等非法利用信息网络案

I. People v. Huang Jieming, Tao Shengxin, et al. for illegal utilization of the information network 发布有关销售管制物品的信息,情节严重的,构成非法利用信息网络罪
The publishing of information on the sale of controlled items, where the circumstances are serious, constitutes a crime of illegally utilizing the information network. (一)基本案情
1. Basic Facts 2017年7月至2019年2月,被告人黄杰明使用昵称为“刀剑阁”的微信,在朋友圈发布其拍摄的管制刀具图片、视频和文字信息合计12322条,用以销售管制刀具,并从中非法获利。被告人陶胜新、李孔祥、陶霖、曾俊杰在微信朋友圈发布从他人的微信朋友圈转载的管制刀具图片、视频和文字信息,数量分别为6677条、16540条、15210条、5316条,用以销售管制刀具,并从中非法获利。
From July 2017 to February 2019, defendant Huang Jieming published photographs, videos, and texts of controlled knives shot and edited by him, 12,322 pieces in total, in the Moments of his WeChat account with the nickname of “Daojiange” for the purpose of selling controlled knives and seeking illegal profits. Defendants Tao Shengxin, Li Kongxiang, Tao Lin, and Zeng Junjie published in their Moments the photographs, videos, and texts of controlled knives forwarded from the Moments of others, 6,677, 16,540, 15,210, and 5,316 pieces separately, for the purpose of selling controlled knives and seeking illegal profits. 2018年5月至7月,宋雨林(已判刑)先后三次通过微信联系陶胜新,购买管制刀具。陶胜新通过微信与黄杰明联系,由黄杰明直接发货给宋雨林,被告人陶胜新从中赚取差价。宋雨林购得刀具后实施了故意伤害致人死亡的犯罪行为。黄杰明违法所得人民币329元,陶胜新违法所得人民币858元。
From May to July 2018, Song Yulin (who has been sentenced) contacted Tao Shengxin via WeChat for three times for purchasing controlled knives. Via WeChat, Tao Shengxin contacted Huang Jieming, who directly delivered the goods to Song Yulin, and Tao Shengxin earned the price difference. After purchasing the controlled knife, Song Yulin committed a crime of intentional injury, which caused death of a victim. Huang Jieming obtained the illicit income of CNY329 and Tao Shengxin obtained the illicit income of CNY858. (二)裁判结果
2. Judgment 江苏省盐城市滨海县人民法院判决认为:被告人黄杰明、陶胜新、李孔祥、曾俊杰、陶霖利用信息网络,发布有关销售管制物品的违法犯罪信息,其行为已构成非法利用信息网络罪。被告人黄杰明、陶胜新归案后,如实供述自己的犯罪事实,构成坦白,且认罪认罚,依法可以从轻处罚。被告人李孔祥、曾俊杰、陶霖自动投案,如实供述自己的犯罪事实,构成自首,且认罪认罚,依法可以从轻处罚。以非法利用信息网络罪分别判处被告人黄杰明、陶胜新有期徒刑八个月,并处罚金人民币一万元;被告人李孔祥、曾俊杰、陶霖有期徒刑七个月,缓刑一年,并处罚金人民币一万元。同时,禁止被告人李孔祥、曾俊杰、陶霖在缓刑考验期内从事网络销售及相关活动。该判决已发生法律效力。
According to the judgment entered by the People's Court of Binhai County, Yancheng City, Jiangsu Province, defendants Huang Jieming, Tao Shengxin, Li Kongxiang, Zeng Junjie, and Tao Lin published illegal information on the sale of controlled articles by utilizing the information network, which act has constituted a crime of illegally utilizing the information network. After Huang Jieming and Tao Shengxin were captured, they truthfully confessed to their crimes, which constituted a confession. In addition, they plead guilty and accepted punishments and thus they may be given lighter punishments according to the law. Li Kongxiang, Zeng Junjie, and Tao Lin voluntarily surrendered themselves and truthfully confessed to their crimes, which constituted confessions. In addition, they plead guilty and accepted punishments and thus they may be given lighter punishments according to the law. For committing the crime of illegally utilizing the information network, Huang Jieming and Tao Shengxin were separately sentenced to a fixed-term imprisonment of eight months and imposed on a fine of CNY10,000; Li Kongxiang, Zeng Junjie, and Tao Lin were separately sentenced to a fixed-term imprisonment of seven months with suspended execution of one year and imposed on a fine of CNY10,000. Concurrently, Li Kongxiang, Zeng Junjie, and Tao Lin were prohibited from engaging in online sale and relevant activities during the probation period. The sentence came into force. 

二、谭张羽、张源等非法利用信息网络案

 为实施诈骗活动发布信息,情节严重的,构成非法利用信息网络罪
II. People v. Tan Zhangyu, Zhang Yuan, et al. for illegal utilization of the information network (一)基本案情
The publishing of information for the purpose of committing a fraud, where the circumstances are serious, constitutes a crime of illegally utilizing the information network. 2016年12月,为获取非法利益,被告人谭张羽、张源商定在网络上从事为他人发送“刷单获取佣金”的诈骗信息业务,即通过“阿里旺旺”向不特定的淘宝用户发送信息,信息内容大致为“亲,我是×××,最近库存压力比较大,请你来刷单,一单能赚10-30元,一天能赚几百元,详情加QQ×××,阿里旺旺不回复”。通常每100个人添加上述信息里的QQ号,谭张羽、张源即可从让其发送信息的上家处获取平均约5000元的费用。谭张羽、张源雇佣被告人秦秋发等具体负责发送诈骗信息。张源主要负责购买“阿里旺旺”账号、软件、租赁电脑服务器等;秦秋发主要负责招揽、联系有发送诈骗信息需求的上家、接收上家支付的费用及带领其他人发送诈骗信息。
1. Basic Facts 2016年12月至2017年3月,谭张羽、张源通过上述方式共非法获利约人民币80余万元,秦秋发在此期间以“工资”的形式非法获利人民币约2万元。被害人王某甲、洪某因添加谭张羽、张源等人组织发送的诈骗信息中的QQ号,后分别被骗31000元和30049元。
In December 2016, for seeking illegal profits, defendants Tan Zhangyu and Zhang Yuan came to an agreement on engaging in the business of sending fraud information of “getting commissions by making false trading” on the Internet. In particular, messages were sent to unspecific Taobao users via Ali Wangwang and the message was roughly went like this, “Dear, I am xxx. We have high inventory recently and we invite you to make false trading for us. You can earn CNY10 to 30 per trade and several hundred RMB yuan per day. For details, please add QQ xxx as a friend. You should be aware that you will get no reply from the Ali Wangwang account.” Under normal conditions, if 100 persons added the aforesaid QQ account, Tan Zhangyu and Zhang Yuan would gain CNY5,000 on average from the upstream dealers that asked them to send such information. Tan Zhangyu and Zhang Yuan hired defendant Qin Qiufa and other persons to be responsible for sending the fraud information. Zhang Yuan was mainly responsible for purchasing Ali Wangwang accounts and software and rent computer servers; and Qin Qiufa was mainly responsible for soliciting and contacting upstream dealers with demands of sending fraud information, receiving the fees paid by such upstream dealers, and guiding other persons in sending fraud information. (二)裁判结果
From December 2016 to March 2017, by the aforesaid means, Tan Zhangyu and Zhang Yuan sought illicit income of over CNY800,000 in total and during this period, Qin Qiufa sought illicit income of CNY20,000 by means of “wages.” The victims Wang A (middle name withheld) and Hong were defrauded of CNY31,000 and CNY30,049 separately since they added the QQ account in the fraud information organized to be sent by Tan Zhangyu and Zhang Yuan as a friend. 江苏省宿迁市沭阳县人民法院一审判决、宿迁市中级人民法院二审判决认为:被告人谭张羽、张源、秦秋发以非法获利为目的,通过信息网络发送刷单诈骗信息,其行为本质上属于诈骗犯罪预备,构成非法利用信息网络罪。虽然本案中并无证据证实具体实施诈骗的行为人归案并受到刑事追究,但不影响非法利用信息网络罪的成立。谭张羽、张源、秦秋发共同实施故意犯罪,系共同犯罪。在共同犯罪中,谭张羽、张源起主要作用,均系主犯;秦秋发起次要作用,属从犯,依法予以从轻处罚。综合考虑各被告人归案后如实供述罪行以及谭张羽、张源赔偿部分受害人经济损失的情节,以非法利用信息网络罪判处被告人张源有期徒刑二年一个月,并处罚金人民币十万元;被告人谭张羽有期徒刑一年十个月,并处罚金人民币八万元;被告人秦秋发有期徒刑一年四个月,并处罚金人民币三万元。
2. Judgment 

三、赵瑞帮助信息网络犯罪活动案

According to the judgment of first instance entered by the People's Court of Shuyang County, Suqian City, Jiangsu Province and the judgment of second instance entered by the Intermediate People's Court of Suqian City, defendants Tan Zhangyu, Zhang Yuan, and Qin Qiufa sent the fraud information of making false trading through the information network for the purpose of seeking illicit income and in nature, their acts were preparations for committing a fraud and constituted a crime of illegally utilizing the information network. Although there was no evidence in this case proving that the actors committing the fraudulent acts were captured and subject to criminal investigation, it did not affect the tenability of the crime of illegally utilizing the information network. Tan Zhangyu, Zhang Yuan, and Qin Qiufa jointly committed the intentional offense, which was a joint crime. In the joint crime, Tan Zhangyu and Zhang Yuan played primary roles and they were principal criminal offenders; Qin Qiufa played secondary roles and they were accessory offenders and should be given lighter punishments according to the law. By taking into full account of defendants' confessions after they were captured and the circumstances where Tan Zhangyu and Zhang Yuan compensated some victims for economic losses, for committing the crime of illegally utilizing the information network, defendant Zhang Yuan was sentenced to a fixed-term imprisonment of two years and one month and imposed on a fine of CNY100,000; defendant Tan Zhangyu was sentenced to a fixed-term imprisonment of one year and ten months and imposed on a fine of CNY80,000; and defendant Qin Qiufa was sentenced to a fixed-term imprisonment of one year and four months and imposed on a fine of CNY30,000. 为他人实施信息网络犯罪提供支付结算帮助,情节严重的,构成帮助信息网络犯罪活动罪
III. People v. Zhao Rui for providing assistance in information network-related criminal activities (一)基本案情
The provision of assistance in payment and settlement for others' committing of an information network-related crime, where the circumstances are serious, constitutes a crime of providing assistance in information network-related criminal activities. 被告人赵瑞经营的网络科技有限公司的主营业务为第三方支付公司网络支付接口代理。赵瑞在明知申请支付接口需要提供商户营业执照、法人身份证等五证信息和网络商城备案域名,且明知非法代理的网络支付接口可能被用于犯罪资金走账和洗钱的情况下,仍通过事先购买的企业五证信息和假域名备案在第三方公司申请支付账号,以每个账号收取2000至3500元不等的接口费将账号卖给他人,并收取该账号入金金额千分之三左右的分润。
1. Basic Facts 2016年11月17日,被害人赵某被骗600万元。其中,被骗资金50万元经他人账户后转入在第三方某股份有限公司开户的某贸易有限公司商户账号内流转,该商户账号由赵瑞通过上述方式代理。
The main business of the network technology limited company operated by defendant Zhao Rui was online payment interface agency for third-party payment companies. Knowing that the business license, the ID of the legal person, and other three certificates and the recorded domain name of the e-shop should be provided in the application for a payment interface and that the online payment interface under his illegal agency may be utilized for entering information on income and expenses of crime-related funds and making laundering, Zhao Rui still applied to third-party companies for payment accounts with information on the aforesaid five certificates and the recorded false domain name he purchased in advance, sold such accounts to others at the price of CNY2,000 to 3,500 per account for interface fees, and charged 0.3% of the deposits of such accounts for profits. (二)裁判结果
On November 17, 2016, the victim surnamed Zhao was defrauded of CNY6 million. In particular, the defrauded fund of CNY500,000 was transferred to the business account of a trading limited company opened by a third party, a limited liability company, through the account of another person and the aforesaid business account was subject to the agency of Zhao Rui in the aforesaid way. 浙江省义乌市人民法院判决认为:被告人赵瑞明知他人利用信息网络实施犯罪,为其犯罪提供支付结算的帮助,其行为已构成帮助信息网络犯罪活动罪。被告人赵瑞到案后如实供述自己的罪行,依法可以从轻处罚。以帮助信息网络犯罪活动罪判处被告人赵瑞有期徒刑七个月,并处罚金人民币三千元。该判决已发生法律效力。
2. Judgment 

四、侯博元、刘昱祈等帮助信息网络犯罪活动案

According to the judgment entered by the People's Court of Yiwu City, Zhejiang Province, knowing that others committed a crime by utilizing the information network, defendant Zhao Rui still provided assistance in payment and settlement for such person and his act has constituted a crime of providing assistance in information network-related criminal activities. After Zhao Rui was captured, he truthfully confessed to his crime and thus he may be given a lighter punishment according to the law. For committing a crime of providing assistance in information network-related criminal activities, Zhao Rui was sentenced to a fixed-term imprisonment of seven months and imposed on a fine of CNY3,000. The sentence came into force. 为他人实施信息网络犯罪提供开办银行卡帮助,情节严重的,构成帮助信息网络犯罪活动罪
 (一)基本案情
IV. People v. Hou Boyuan, Liu Yuqi, et al. for providing assistance in network-related criminal activities 2018年5月28日,被告人侯博元、刘昱祈在台湾地区受人指派,带领被告人刘育民、蔡宇彦等进入大陆到银行办理银行卡,用于电信网络诈骗等违法犯罪活动。刘育民、蔡宇彦明知开办的银行卡可能用于电信网络诈骗等犯罪活动,但为了高额回报,依然积极参加。当日下午,抵达杭州机场,后乘坐高铁来到金华市区并入住酒店。当晚,侯博元、刘昱祈告知其他人办理银行卡时谎称系来大陆投资,并交代了注意事项及具体操作细节。5月29日上午,在金华多家银行网点共开办了12张银行卡,并开通网银功能。
The provision of assistance in opening bank cards for others' committing of information network-related crimes, where the circumstances are serious, constitutes a crime of providing assistance in information network-related criminal activities. 另,2018年5月14日至18日,被告人侯博元、刘昱祈以同样的方式在金华市区义乌两地办理银行卡,并带回台湾地区。
1. Basic Facts (二)裁判结果
On May 28, 2018, designated by others in Taiwan Region, defendants Hou Boyuan and Liu Yuqi led defendants Liu Yumin and Cai Yuyan into applying for bank cards in the Chinese mainland for committing telecommunication network frauds and other illegal and criminal activities. Knowing that the bank cards opened may be used in telecommunication network frauds and other criminal activities, for seeking high returns, Liu Yumin and Cai Yuyan still took an active part. On the afternoon of the same day, they arrived at the Hangzhou International Airport. Then, they arrived at the urban areas of Jinhua City by taking a high-speed railway and checked in a hotel. On that evening, Hou Boyuan and Liu Yuqi notified other persons of falsely claiming that they came to the Chinese mainland for making investment when applying for a bank card and explained the matters needing attention and the specific operational details. On the morning of May 29, they opened 12 bank cards in several bank outlets in Jinhua City and the online banking was all opened. 浙江省金华市婺城区人民法院判决认为:被告人侯博元、刘昱祈、蔡宇彦、刘育民明知开办的银行卡可能用于实施电信网络诈骗等犯罪行为,仍帮助到大陆开办银行卡,情节严重,其行为均已构成帮助信息网络犯罪活动罪。以帮助信息网络犯罪活动罪判处被告人侯博元、刘昱祈有期徒刑一年二个月,并处罚金人民币一万元;被告人蔡宇彦、刘育民有期徒刑九个月,并处罚金人民币五千元。该判决已发生法律效力。
In addition, from May 14 to 18, 2018, defendants Hou Boyuan and Liu Yuqi opened bank cards in urban areas of Jinhua City and Yiwu City in the same way and brought such bank cards to Taiwan Region. 
2. Judgment 
According to the judgment entered by the People's Court of Wucheng District, Jinhua City, Zhejiang Province, knowing that the bank cards opened may be used for committing telecommunication network frauds and other crimes, defendants Hou Boyuan, Liu Yumin, Cai Yuyan, and Liu Yumin still assisted in opening bank cards in the Chinese mainland. Under serious circumstances, their acts have constituted a crime of providing assistance in information network-related criminal activities. For committing a crime of providing assistance in information network-related criminal activities, Hou Boyuan and Liu Yumin were separately sentenced to a fixed-term imprisonment of one year and two months and imposed on a fine of CNY10,000; and Cai Yuyan and Liu Yumin were separately sentenced to a fixed-term imprisonment of nine months and imposed on a fine of CNY5,000. The sentence came into force. 
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