150 total views, 1 views today
The following Opinions on several issues of handling criminal cases of unsing information networks to perpetrate crimes by underwold forces are based on the Criminal Law, Criminal Procedure Law, Cybersecurity Law,and other relevant judicial interpretations and normative documents and submitted so as to earnestly implement the deployment requirements of the CPC Central Committee on carrying out the Special Crackdown on Clearing Away Organized Crime and Eliminating Vice;and to correctly understand and apply the "Guiding Opinions on Several Issues in Handling Cases of Underworld Forces Crimes" (Fafa (2018) No.1) released by the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, and Ministry of Justice, hereinafter simply the "Guiding Opinions":
I. General Requirements
- All levels of people's court, people's procuratorate, public security organ, and judicial-administrative organ shall unify thinking on enforcement, increase the efficacy of enforcement, persist in striking early and combating even small offenses; lawfully and strictly punishing crimes by underworld forces that use the information networks, and effectively preserving network security and the order of economic and social life.
- All levels of people's court, people's procuratorate, public security organ, and judicial-administrative organ shall correctly utilize the law, handle cases strictly in accordance with law, persist in striking precisely and accurately, and earnestly implementing the criminal policy of blending leniency with severity so that there is a basis for leniency and severity, the punishment fits the crime, and political, legal, and social effects are united.
- All levels of people's court, people's procuratorate, public security organ, and judicial-administrative organs shall divide labor and responsibility, cooperate with each others' work, truly strengthen coordination with relevant administrative regulatory departments, complete and improve risk prevention and control mechanisms, and actively create new governance framework that combines online and offline society.
II. Strictly Punish the Use of Information Networks to Perpetrate Underworld Forces Crimes in Accordance with Law
- Where crimes by underworld forces are perpetrated by threatening, coercing, intimidating, or pestering others through means such as publishing or deleting negative or false information; sending insulting information or pictures; or using information or telephone harassment; it shall be correctly designated and strictly punished in accordance with law.
- Where information networks are used to threaten others or force transactions, and the circumstances are serious, it is to be convicted and sentenced as the crime of coercive business transactions in accordance with article 226 of the Criminal Law.
- Extorting public or private property by using information networks to threaten or coerce others, where the amounts are relatively large, or where the above conduct is committed several times, shall be convicted and punished as the crime of blackmail and extortion in accordance with article 274 of the Criminal Law.
- Use of information networks to berate or intimidate others, where the circumstances are repugnant and social order is undermined, shall be convicted and punished as the crime of provocation and causing disturbances ["picking quarrels"] in accordance with provisions of item 2 in paragraph 1 article 293 of the Criminal Law.
The dissemination of false information on information networks, which one has either invented or clearly knows to be fabricated information, or the organizing or inciting of others to disseminate it on information networks, creating an uproar and causing serious public disorder, is to be convicted and punished as the crime of 'provocation and causing disturbances' in accordance with item 4 in the first paragraph of article 293 of the Criminal Law.
- Where in the investigation and handling of illegal enrichment cases such as coercive business or blackmail it is impossible to individually collect each victim's statement due to objective limits such as having large numbers of victims, evidence such as already collected victim statements and verified bank account records, third-party payment and settlement account transaction records, call records, or electronic data may be summarized to determine the total number of victims or monetary amounts involved in the case.
III. Correctly Identify Underworld Forces Using Information Networks to Perpetrate Crimes
- Where the use of information networks to perpetrate illegal and criminal activities meets the characteristics and standards for designating malign forces, malign force crime gangs, or underworld criminal organizations, as provided for in the Criminal Law, "Guiding Opinions" and the "Opinions on Several Issues of Handling Criminal Cases by Underworld Forces" by the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, and Ministry of Justice; a designation shall be made for the malign forces, malign force crime gangs, or underworld criminal organization.
When designating underworld criminal organizations that use information networks to carry out illegal and criminal activities, a comprehensive review and judgment shall be conducted in accordance with the 'four characteristics' provided for in paragraph 5 of article 294 of the Criminal Law, analyzing the internal connections of the 'four characteristics' to correctly assess on the basis of the harm caused to citizens' persons and property, democratic rights, and the order of their economic and social lives through illegal and criminal conduct in cyberspace and real society, and make a designation in accordance with law.
- Designation of malign force organizations using the information networks to perpetrate violations and crimes should be by overall judgment of factors such as the motive and goals of the crime, as well as the whether the persons organizing, planning, directing, and participating are relatively fixed; whether the organization continues criminal activities after it is formed, and whether there are clear mechanisms for division of duties, conduct regulation, and splitting benefits.
- Where information networks are used in an organized manner to carry out illegal or criminal activities, or to obtain a definite amount of economic benefit through other means that is used for illegal or criminal activities or for the survival and development of that organization; it shall be found to meet the underworld criminal organization economic characteristic provided for in item 2 of paragraph 5 of Criminal Law article 294.
- Where online and offline methods are combined to use the information networks in an organized fashion several times to carry out illegal or criminal activities to violate the personal, democratic, or property rights of several specified persons; undermining economic or social order; it shall be found to meet underworld criminal organization behavioral characteristic provided for in item 3 of paragraph 5 of Criminal Law article 294. Where purely online methods are used to carry out illegal or criminal activities, but it lacks the characteristics of malice and oppressing the public, it should usually not be the basis for finding the underworld criminal organization behavioral characteristics.
- As for the "certain region or industry" that is illegally controlled or impacted by underworld forces' use of information networks to carry of crimes, make a comprehensive assessment the extent to which the threatened region or industry is relatively concentrated, and the extent of the criminal suspect or defendant's control or impact in cyberspace and real space. Even where the places where the places where the threatening conduct occurred or the threatened industries are quite spread out, where the criminal organization involved in the case uses the information networks to carry out several instances of illegal or criminal activity, such coerced transactions, provocation [picking quarrels] or blackmail, causing a substantial impact in cyberspace and real space, and seriously undermining the order of economic and social life; it shall be found to be "forming illegal control or major impact in a certain region or industry"
IV. Jurisdiction of Cases of Using Information Networks to Perpetrate underworld Forces Crimes
- Jurisdiction of cases of underworld forces' use of information networks to commit crimes is determined with reference to the "Provisions on Several Issues in the Handling of Underworld Criminal Organization Crimes", the "Opinions on Several Issues Regarding the Application of Criminal Procedure in Cases of Online Crimes", and other relevant provisions, and adhering to the principle of primarily having jurisdiction at the site of the crime, with the residence of the defendant as a supplement.
- Public security organs may lawfully combine investigation of cases of underworld forces using the information networks to carry out crimes, or designate a lower level public security organ for jurisdiction, and the public security organ combining cases for investigation or that was designated to take jurisdiction by a higher-level public security organ shall comprehensively investigate and collect evidence sufficient to prove the facts of the underworld forces crimes, and the public security organs for all places involved in the case shall actively cooperate. In cases investigated together or for which public security organs have designated jurisdiction, where it is necessary to request approval of arrest, or transfer for review for prosecution or indictment, the people's procuratorate and people's court for the regions in which that public security organs that opened the case and investigated it are to accept it:
- In cases of underworld forces crimes committed using the information networks that the public security organs have submitted to be reviewed for approval of arrest or transferred for review for prosecution by the people's procuratorates or that have already entered the trial process at people's courts; where the defendants and their defenders' objections to jurisdiction are sustained, or where the case handling organs discover that they don't have jurisdiction, then upon review, the people's procuratorate or people's courts may lawfully request that jurisdiction be designated by the people's procuratorate or people's court at the common level above, and are not to transfer it further themselves.
- Where public security organs designate a lower level public security organ to handle cases of underworld forces using information networks to perpetrate crimes, they shall concurrently send a copy to people's procuratorate and people's court at the same level. Where people's procuratorates find that it is necessary to designate trial jurisdiction, they shall negotiate with the people's court of the same level to handle matters related to the designation of jurisdiction.
- 18. These Opinions are to take effect on October 21, 2019.