SPP Guiding Cases Set 9

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Title: Notice on Printing and Distributing the Supreme People's Procuratorate's 9th Batch of Guiding Cases
Promulgating Entities:Supreme People's Procuratorate
Reference number: 
Promulgation Date: 2017-10-12
Expiration date: 
Source of text: https://mp.weixin.qq.com/s/7wokssMPZrkTei5BYenGzQ

Table of Contents

The case of Li Binglong tampering with computer information systems (Proc. Guiding Case No. 33)
Key Words Basic Case Details Procedural History and Outcomes Main Ideas Guidance Significance Relevant Legal Provisions

The case of Li Junjie et al tampering with computer information systems (Proc. Guiding Case No, 34)
Key Words Basic Case Details Procedural History and Outcomes Main Ideas Guidance Significance Relevant Legal Provisions

The case Li Junjie et al tampering with computer information systems (Proc. Guiding Case No. 35)
Key Words Basic Case Details Procedural History and Outcomes Main Ideas Guidance Significance Relevant Legal Provisions

The case of Wei Menglong, Gong Xu and Xue Dongdong Illegaly acquiring computer information system data (Proc. Guiding Case No. 36)
Key Words Basic Case Details Procedural History and Outcomes Main Ideas Guidance Significance Relevant Legal Provisions

The Zhang Simao Theft Case (Proc. Guiding Case No.37)
Key Words Basic Case Details Procedural History and Outcomes Main Ideas Guidance Significance Relevant Legal Provisions

The Case of Fraud by Four People Including Dong Liang (Proc. Guiding Case No. 38)
Key Words Basic Case Details Procedural History and Outcomes Main Ideas Guidance Significance Relevant Legal Provisions

 

Notice on Printing and Distributing the Supreme People's Procuratorate's 9th Batch of Guiding Cases

People's procuratorates of all provinces, autonomous regions and directly governed municipalities; people's liberation army military procuratorates and the people's procuratorate for the Xinjiang Production and Construction Corps:

Having been decided upon on October 10, 2017 by the 70th meeting of the 13th procuratorial committee of the Supreme People's Procuratorate, The Case of Li Binglong Tampering with Computer Information System and 5 other guiding cases (Proc. Guiding Case Nos. 33-38) are hereby published as the 9th set of guiding cases, provided for your reference.

Supreme People's Procuratorate

2017/10/12

The case of Li Binglong tampering with computer information systems (Proc. Guiding Case No. 33)

Key Words

Tampering with computer information systems Hijacking domain names

Basic Case Details

Defendant Li Binglong is a male private business owner, born August 1991.

Seeking illegal profits, the defendant Li Binglong planned to modify the DNS resolution of a major website so as to hijack internet traffic hits to a gambling site and obtain advertising traffic commissions from a gambling site outside of mainland China. On October 20, 2014, Li Binglong posing as an employee of a well-known website, used methods such as forging the website business's licenses, gaining the website's registration service provider's trust, and obtaining authorization to manage DNS resolution. On October 21st, Li Binglong used the account he had registered on the DNS resolution service website platform to exploit that functions of that platform to automatically generate the resolution list of some subdomains' DNS (Domain Name System), and modified the IP target of those subdomains, causing them to link to a gambling site advertisement page he had established on virtual server he hired outside of the mainland. On the same day at 7:00 PM, Li Binglong's modification to the site DNS server's targets took effect, making it so that the website could not operate normally. At around 11:00 P.M. , this well-known website was restored to normal operation through technical screening. On November 25, Li Binglong was caught by the public security organs. Through the time of the crime, Li Binglong had not yet profited.

According to judicial evaluation, there are 5,590,000 active accounts on the well-known website, and its email system has 3,600,000 users. Calculating based on the average number of daily visits to the computer client, from October 7th to October 20th, the average daily visits of the mailbox system reached 123,000. LI Binglong's behavior made the well-known site unable to perform its functions normally for about four hours on October 21 from about 7:00- 11:00 PM, and on that date the number of even just email client visitors dropped from 123,000 to 44,300.

Procedural History and Outcomes

The people's procuratorate for the Xuhui District of Shanghai filed an indictment in this case on April 9, 2015 with the Xuhui District People's Court, alleging that Li Binglong had committed the crime of tampering with computer systems. On November 4, The Xuhui District People's Court, found that Li Binglong's conduct constituted to crime of tampering with computer systems. In accordance with Article 4 of the "Supreme People's Court and Supreme People's Procuratorate Interpretation on Several Questions concerning the Applicable Law in Criminal Cases of Tampering with Computer Information Systems" , Li Binglong's acts meet the requirements of the situation for 'especially serious consequences' in having caused a computer information system that provides service to 50,000 or more users to be unable to operate normally for a cumulative hour or more. Summarizing the sentencing circumstances, Li Binglong was sentenced to 5 years imprisonment. After the first-instance trial verdict was announced, the defendant did not appeal, and the verdict has become effective.

Main Ideas

The hijacking of domain names through modification of domain name resolution servers, making computer information systems unable to operate normally, is conduct tampering with computer information systems.

Guidance Significance

Modifying the direction of domain name resolution servers, forcing users to leave their target website or page and enter a designated site or page, is classic domain name hijacking. The perpetrator's use of malicious code to alter target websites' domain name resolution servers, with the target domain name being maliciously resolved to another IP address and there being no way to employ the websites' normal service functions, is in fact conduct modifying and disrupting the function of computer information systems, and are eligible under article 286 of the Criminal Law's provisions on 'carrying out deletion, modification, addition, or disruption' of computer information systems' functions. In accordance with Article 4 of the "Supreme People's Court and Supreme People's Procuratorate Interpretation on Several Questions concerning the Applicable Law in Criminal Cases of Tampering with Computer Information Systems" , where a computer information system that provides service to 10,000 or more users is made unable to operate normally for a cumulative hour or more, it is 'serious consequences' and should be addressed as the crime of tampering with computer information systems; and where a computer information system that provides services to 50,000 or more users is made unable to operate normally for a cumulative hour or more, it is 'especially serious consequences.'

Determination of the number of users served by the disrupted computer information systems may be an objective judgment made on the bases of the functional and usage characteristics of the computer information system, taken together with the number of registered users, browsing visitors and other specific circumstances.

Relevant Legal Provisions

《Criminal law of the People's Republic of China》

Article 286: Where State regulations are violated by deleting, changing, making additions to, or interfering with the functions of a computer information system, making it so that the computer information system is unable to operate normally, and the consequences are serious, it is to be given up to five years imprisonment or short-term detention; and where the circumstances are especially serious, it is to be given five or more years imprisonment.

《The Supreme People's Court and Supreme People's Procuratorate Interpretation of Several Issues Regarding the Applicable Law for Handling Cases of Crimes Endangering Computer Information Systems》

Article 4: In any of the following situations, tampering with computer information systems' function,data, or application procedures,shall be held to be "serious consequences" as provided in the first and second paragraphs of article 286 of the Criminal Law:

……

(4) Causing 100 computer information system that provide domain name resolution, identity verification, billing, or other basic services, or computer information systems that provide services to 10,000 or more users, to be unable to operate normally for a cumulative hour or longer;

……

In any of the following situations, perpetrating the conduct provided for in the preceding paragraph shall be held to be tampering with computer information systems with "especially serious consequences."

……

(2) Causing 500 or more computer information system that provide domain name resolution, identity verification, billing, or other basic services, or computer information systems that provide services to 50,000 or more users, to be unable to operate normally for a cumulative hour or longer;

……

The case of Li Junjie et al tampering with computer information systems (Proc. Guiding Case No, 34)

Key Words

tampering with computer information systems, deletion or modification of purchase ratings, shopping website rating systems

Basic Case Details

Defendant Li Junjie is male, born in July 1985, and was formerly a staff member of a network company in Zhejiang, Hangzhou.

Defendant Hu Rong is male, born in January 1975, and was originally a police officer with the Jiujiang Public Security Bureau of Jiangxi province.

Defendant Huang Fuquan is male, born in September 1987 and a worker.

Defendant Dong Wei is male, born in May 1983, and unemployed.

Defendant Wang Fengzhao is female, born in November 1988, and a worker.

From May 2011 to December 2012, at both his home and work, and either alone or with others, the defendant Li Junjie used chat software to contact sellers on a shopping website who needed to change bad ratings, and purchased information on more than 300 buyers' who left bad ratings. Li Junjie posed as the buyers, tricking customer service reviews to reset the account passwords and login to the shopping website's internal rating system and delete or revise 347 poor ratings by buyers, receiving more than 90,000 RMB.

Through investigation it was learned that defendant Hu Rong, using his position to facilitate, obtained citizen's personal information and sold parts of it separately to defendants Huang Fuquan, Dong Wei, and Wang Fengzhao.

On December 11, 2012, the defendant Li Junjie was captured by the public security organs. Thereafter, the defendants Hu Rong, Huang Fuquan, Dong Wei, Wang Fengzhao et al were also arrested by the public security organs on suspicion of the sale of citizens' personal information and illegal obtaining citizens' personal information.

Procedural History and Outcomes

On March 24, 2014, the people's procuratorate for the Binjiang District of Hangzhou City in Zhejiang Province filed a criminal complaint in the Binjiang District people's court alleging that defendant Li Junjie had committed the crime of tampering with computer information systems, that defendant Hu Rong had committed the crime of selling citizens' personal information, and that defendant Huang Fuquan et. al. had committed the crime of illegally obtaining citizens' personal information. On January 1, 2015, the Binjiang Disctrict People's Procuratorate made its judgment, finding that defendant Li Junjie's conduct constituted the crime of tampering with computer information systems, and sentencing him to 5 years imprisonment; defendant Hu Rong's conduct was found to constitute the crime of selling citizens' personal information, and he was sentenced to 10 months imprisonment and given a concurrent fine of 20,000 RMB; defendants Huang Fuquan,Dong Wei, and Wang Fengzhao's conduct was found to constitute the offense of illegally acquiring citizens' personal information, and they were separately sentenced to terms of imprisonment, short-term detention, and concurrent fines. After the first-instance verdict was announced, the defendant Dong Wei raised an appeal. The Hangzhou Intermediate People's Court Second-Instance trial ruling rejected the appeal and sustained the original judgment. The judgment has already become effective.

Main Ideas

Pretending to be a consumer to enter a shopping website's internal rating system and delete ratings of purchases is modification of a computer information systems' internal storage data and shall be found to be conduct tampering with computer information systems.

Guidance Significance

Shopping websites rating systems are systems that make comprehensive calculations based on various factors such as sale volumes and customer ratings, and the data stored in them directly impacts the allotment of search traffic, ordering of recommendation, qualification to enroll in promotional activities, fairness in consumer comparisons of similar goods, and so forth. After buyers purchase items, they give the products one of three types of ratings; good, fine, or poor based on their user experience. All of the ratings are stored as data in the customer rating system, and become an important constituent component of the entire shopping website's computer information system's overall data.

Intrusion on the rating system to make deletions or modifications of purchase ratings is actually conduct making deletions and modifications of the computer information system. This type of conduct endangers the operation of the computer information system's data collection and traffic allocation systems, impacting the website's registered users' searches of goods and services, making the websites' function for rating goods and services to be unable to operate normally, and harming the information system security of the company that owns the website, and the consumers right to know. Where the unlawful gains from a perpetrator's deleting and modifying negative rating data on a shopping website is 25,000 RMB or more, and it constitutes criminal tampering with computer information systems, it is a situation with 'especially serious outcomes' and shall be given five or more years imprisonment in accordance with law.

Relevant Legal Provisions

《Criminal law of the People's Republic of China》

Article 286: Where State regulations are violated by deleting, changing, making additions to, or interfering with the functions of a computer information system, making it so that the computer information system is unable to operate normally, and the consequences are serious, it is to be given up to five years imprisonment or short-term detention; and where the circumstances are especially serious, it is to be given five or more years imprisonment.

Operations violating State regulations by deleting, changing or adding to the data and application programs stored, processed or transmitted on a computer information system, where the consequences are serious, are to be punished in accordance with the preceding paragraph.

《The Supreme People's Court and Supreme People's Procuratorate Interpretation of Several Issues Regarding the Applicable Law for Handling Cases of Crimes Endangering Computer Information Systems》

Article 4: In any of the following situations, tampering with computer information systems' function,data, or application procedures,shall be held to be "serious consequences" as provided in the first and second paragraphs of article 286 of the Criminal Law:

……

(3) Where the unlawful gains are 5,000 RMB or more, or damage of 10,000 RMB or more was caused;

……

In any of the following situations, perpetrating the conduct provided for in the preceding paragraph shall be held to be tampering with computer information systems with "especially serious consequences."

(1) Where the number or amount reached five times the standards provided for in items (1) - (3) above;

……

《Measures for the Protection and Management of Computer Information Network International Networking Security》

Article 6: The following activities endangering computer information network security must not be engaged in by any units or individuals:

(1) Entering a computer information network or using computer information network resources without permission;

(2) Deleting, modifying, or making additions to computer information network functions without permission;

(3) Deleting, changing or adding to the data and application programs stored, processed or transmitted on a computer information system, without permission.

(4) intentionally making or transmitting destructive programs such as computer virus;

(5) Others that endanger computer information network security.

The Case of Ceng Xingliang and Wang Yusheng tampering with computer information systems.

Key Words

Tampering with computer information systems, smart phone terminals, remote locking

Basic Case Details

Defendant Ceng Xingliang is male, born in August 1997, and a farmer.

Defendant Wang Yusheng is male, born in February 1992, and a farmer.

From October to November of 2016, the defendants Ceng Xingliang and Wang Yusheng, separately and together, used social media chat software to impersonate young women and chat with the victims, saying that because of a problem with their apple cellphone they were unable to log onto the 'iCloud', and asked the victims to login for them, tricking the victims into first deregistering their own apple cellphones original IDs, and then using an ID and password provided by the defendants to log in. Thereafter, Ceng and Wang would immediately use the new ID and password to log into the official Apple website on their computers, and use functions of apple cellphones to change the settings of the victims' phones, and using the 'password protection problem'to change the password for that ID, thereby remotely locking the victims' cellphones. Ceng and Wang then went on their personal computers again and used network chat software to contact the victims, demanding money as a condition for unlocking the phone. Ceng Xingliang, either alone or collaboratively, used this method 21 times involving 22 apple phones, locking 21 of the apple phones, and extorting 7,290 RMB; and Wang Yusheng participated in 12 incidences, involving 12 phones, locking 11 phones, and extorting 4,750 RMB. On November 24, 2016, the two were arrested by the public security organs.

Procedural History and Outcomes

The people's procuratorate for Hai'an County in Jiangsu Province submitted this case to the Hai'an County people's court on December 23, 2016, alleging that defendants Ceng Xingliang and Wang Yusheng had committed the crime of tampering with computer information systems. On January 20, 2017, The Hai'an County people's court made its judgment, finding that Ceng Xingliang and Wang Yusheng's conduct constitutes the crime of tampering with computer information systems, and separately punished them to 1 year and three months imprisonment, and six months imprisonment. After the first-instance trial verdict was announced, the two defendants did not appeal and the judgment has already taken effect.

Main Ideas

Smart phone terminals shall be found to be computer information systems protected by the criminal law. Locking smartphones so that they cannot be used may be found to be tampering with computer information systems.

Guidance Significance

Computer information systems include computers, network equipment, telecommunications equipment, automated control equipment, and so forth. Smart phone, like computers, use independent operating systems and independent operations space and can have users install software and other applications on their own, and they may allow about wireless network access through the mobile telecommunications networks and shall be held to be "computer information systems" as used in the Criminal Law.

The perpetrators conduct in modifying the victims' cellphone login passwords, remotely locking the victims' smartphone equipment and making them 'zombie phones' that could not be turned on, is conduct modifying or disrupting computer information systems' functions. Causing 10 or more smartphone systems to be unable to function normally is 'modifying or disrupting computer information system" with "serious consequences" as found in the elements of the crime of tampering with computer information systems in Criminal Law article 286, and constitutes the crime of tampering with computer information systems.

Perpetrators seeking money as a condition for unlocking the phones after having employed illegal methods to lock the phones, in a situation where the amount is larger or where there were multiple instances of extortion, the conduct also constitutes the crime of blackmail or extortion. In this type of criminal case, the conduct's methods constituting criminal tampering with computer information systems and the conduct's intent constituting criminal extortion, link to form a joined crime. Joined crimes shall be punished in accordance with the more serious crime. In situations where the consequences are serious, the legally-prescribed sentence for tampering with a computer information system is up to five years imprisonment or short-term detention; and the legally-prescribed sentence for extortion in situations where the amount is larger is up to three years imprisonment, short-term detention, or controlled release, and a concurrent or independent fine. This case should be handled in accordance with the heavier crime of tampering with computer information systems.

Relevant Legal Provisions

《Criminal law of the People's Republic of China》

Article 286: Where State regulations are violated by deleting, changing, making additions to, or interfering with the functions of a computer information system, making it so that the computer information system is unable to operate normally, and the consequences are serious, it is to be given up to five years imprisonment or short-term detention; and where the circumstances are especially serious, it is to be given five or more years imprisonment.

Article 274: Extortion of public or private property where the amount is relatively large, or there are multiple instances of extortion, is to be sentenced to up to three years imprisonment, short-term detention or controlled release and/or a fine; where the amount is huge or there are other serious circumstances, the sentence is between three and ten years imprisonment and a concurrent fine; where the amount is especially huge or there are other especially serious consequences, the sentence is 10 or more years imprisonment and a concurrent fine.

《The Supreme People's Court and Supreme People's Procuratorate Interpretation of Several Issues Regarding the Applicable Law for Handling Cases of Crimes Endangering Computer Information Systems》

Article 11: 'Computer information system' and 'computer system' as used in this Interpretation refers to systems with the function of automatically handling data, including computers, network equipment, telecommunications equipment, automated control equipment, and so forth.

……

《The Supreme People's Court and Supreme People's Procuratorate's Interpretation of Several Issues Regarding the Applicable Law in Handling Criminal Cases of Extortion》

Article 1: A "relatively large sum" , "a huge sum" and "a particularly huge sum" as provided for in Article 274 of the Criminal Law shall refer to blackmail or extortion of public or private property valued at 2000-5000 yuan or more, 30,000 to 100,000 yuan or more and 300,000 to 500,000 yuan or more, respectively.

The high people's courts and people's procuratorates of each province, autonomous region and directly governed municipality may research and determine the specific standard amounts to be applied, within the range of the proceeding provision and on the basis of the region's economic developmental and social order conditions, and report this for filing with the Supreme People's Court and Supreme People's Procuratorate.

《Jiangsu Provincial High People's Court, High People's Procuratorate, and Public Security Office Opinions on the Province's Standards for Enforcement of Extortion of Public Assets where the "Amount is Larger", the "Amount is Huge", and "the Amount is Especially Huge"》

It is determined on the basis of 《The Supreme People's Court and Supreme People's Procuratorate's Interpretation of Several Issues Regarding the Applicable Law in Handling Criminal Cases of Extortion》, taken together with the province's actual economic and development condition, that the standards for enforcement of Criminal Law article 474 on extortion of 'larger', 'huge' and 'especially huge' amounts, are as follows.

1. Where the value of extorted public assets is 4,000 RMB of higher, it is a 'larger amount';

2. Where the value of extorted public assets is 60,000 RMB of higher, it is a 'huge amount';

……

The case of Wei Menglong, Gong Xu and Xue Dongdong Illegaly acquiring computer information system data (Proc. Guiding Case No. 36)

Key Words

Illegal acquisition of computer information systems' data, Logging in beyond the scope of authorization, Intrusion on Computer information systems

Basic Case Details

Defendant Wei Menglong is male, born in October 1987, and was formerly a manager of a company in Beijing.

Defendant Gong Xu is female, born in September 1983, and was formerly a operations planning and management employee for a large internet company in Beijing.

Defendant Xue Dongdong is male, born in December 1989, and has no fixed occupation.

From 2012 to 2014, the defendant Wei Menglong worked in a large-scale network company and was the coworker of defendant Gong Xu who worked in that company's operations planning and management department. The defendant Xue Dongdong and Wei Menglong were commercial partners.

Due to her work, Gong Xu had access to the large-scale network company's internal management and development systems' accounts, passwords, and tokens (computer identity recognition tokens) and had authority to review all relevant data and information within the scope of her work. However, this large-scale network company prohibits employees from reviewing or downloading electronic data and information in the internal management and development system that is outside the scope of their work.

From June through August of 2016, having conspired in advance, Gong Xu provided Wei Menglong with the accounts, passwords, and tokens that she had take hold of from the company's internal management and development system. Wei Menglong used the accounts, passwords, and tokens provided by Gong Xu to violate the rules by logging in to the company's internal management and development system on multiple occasions from different locations, making inquiries and downloading electronic data stored in the computer information system. Then, Wei Menglong gave the illegally acquired electronic data to Xue Dongdong to sell through the internet for profit, with unlawful gains cumulatively amounting to 37,000 RMB.

Procedural History and Outcomes

The people's procuratorate for the Haidian District in Beijing submitted a criminal complaint to the Haidian District people's court on February 9, 2017, alleging that the defendants Wei Menglong, Gong Xu, and Xue Dongdong committed the crime of illegally acquiring computer information system data. On June 6, the people's court for the Haidian District of Beijing made its judgment, finding that the defendants Wei Menglong, Gong Xu, and Xue Dongdong's conduct constituted the crime of illegally acquiring computer information system data, with the circumstances being especially serious. Wei Menglong was sentenced to 4 years imprisonment and given a concurrent fine of 40,000 RMB; Gong Xu was sentenced to 3 years and 9 months imprisonment and a concurrent fine of 40,000 RMB; and Xue Dongdong was sentenced to 4 years imprisonment and given a concurrent fine of 40,000 RMB. After the first-instance trial verdict, the three defendants did not appeal, and the judgment became effective.

Main Ideas

Exceeding the scope of authorization to use user accounts and passwords to log in to computer information systems is conduct intruding on computer information systems; and downloading of internally stored data after intruding on a computer information system may be found to be illegal acquisition of computer information system data.

Guidance Significance

The 'intrusion' in the unlawful acquisition of computer information system data refers to unlawfully entering a computer information system against the will of the victims. It's presentation includes employing technical means to tamper with system safeguards and enter computer information systems, and also entering computer information systems without authorization from the victim,and further includes entering computer information systems beyond the scope of the victim's authorization.

In this case, the defendant Gong Xu, gave his company's accounts, passwords, Tokens, and so forth, which he had gotten hold of due to his work, and passed these to Wei Menglong to enter the company management and development system to acquire data; and while it is not the use of technical means to tamper with computer information systems, the collaboration of internal and external persons to login to the management and development system to download data without authorization clearly exceeds to the normal scope of authorization. Exceeding the scope of authority to use accounts, passwords, and token login systems, also constitutes conduct intruding on computer information systems. The perpetrator violated article 7 of the 《People's Republic of China Computer Information System Security Protection Regulations》, and item 1 of article 6 of the 《Measures for the Protection and Management of Computer Information Network International Networking Security》, by carrying out an illegal intrusion, download and obtain data stored on a computer information system, constituting the crime of illegally acquiring computer information system data. In accordance with the 2011 'Supreme People's Court and Supreme People's Procuratorate Interpretation on Several Issues Related to the Application of Law in Handling Criminal Cases of Engdangering Computer Information System Security", where a crime is constituted and the unlawful gains are 20,000 RMB or more, it shall be found to be "especially serious circumstances" and given a sentence of between three and seven years imprisonment and a concurrent fine.

Relevant Legal Provisions

《Criminal law of the People's Republic of China》

Article 285: Where State regulations are violated by intruding upon computer information systems for state affairs, defense, or cutting edge science and technology fields, it is to be given up to three years imprisonment or short-term detention.

Where State regulations are violated by intruding on computer information systems or other technical means other than those described in the preceding paragraph; and obtaining the data that is stored, processed or transmitted in computer information systems; or unlawfully controlling that computer information system, and where the circumstances are serious, a sentence of up to three years imprisonment or short-term detention is given, and a fine is given concurrently or as the sole punishment; where the circumstances are especially serious, a sentence of between three and seven years imprisonment and a concurrent fine is given.

《The Supreme People's Court and Supreme People's Procuratorate Interpretation of Several Issues Regarding the Applicable Law for Handling Cases of Crimes Endangering Computer Information Systems》

Article 1: In any of the following circumstances,illegaly acquiring computer information system data or illegally controlling computer information systems shall be found to be 'serious circumstances' as provided for in the second paragraph of Criminal Law article 285:

……

(4) Where the unlawful gains are 5,000 RMB or more, or damage of 10,000 RMB or more was caused;

……

In any of the following circumstances, perpetrating any of the conduct provided for in the preceding paragraph shall be found to be 'especially serious circumstances' as provided for in the second paragraph of Criminal Law article 285:

(1) Where the number or amount reached five times the standards provided for in items (1) - (4) above;

……

《People's Republic of China Computer Information System Security Protection Regulations》

Article 7: Computer information systems must not be used to engage in activities that endanger the national interest, collective interests, and lawful rights and interests of citizens; and the security of computer information systems must not be harmed, by any organization or individual.

《Measures for the Protection and Management of Computer Information Network International Networking Security》

Article 6: The following activities endangering computer information network security must not be engaged in by any units or individuals:

(1) Entering a computer information network or using computer information network resources without permission;

(2) Deleting, modifying, or making additions to computer information network functions without permission;

(3) Deleting, changing or adding to the data and application programs stored, processed or transmitted on a computer information system, without permission.

(4) intentionally making or transmitting destructive programs such as computer virus;

(5) Others that endanger computer information network security.

The Zhang Simao Theft Case (Proc. Guiding Case No.37)

Key Words

theft, network domain names, property attributes, domain name value

Basic Case Details

Defendant Zhang Simao is male, born in July 1989, and unemployed.

In May of 2009, the victim Chen X logged onto a domain name registration website from the Xigang District of Dalian, and bought the domain name "www.8.cc" in an auction for 118,500 RMB, and had it parked with a maintenance company.

The defendant Zhang Simao planned to steal Chen X's domain name "www.8.cc", and first use technical means to crack the passwords of email boxes linked to the domain name, and then had that network domain name transferred to his own email box. On August 6, 2010, Zhang Simao transferred the domain name from the original maintenance company to a separate ID that his own network company had applied for, and then again on March 16, 2011, had the domain name transferred to an ID applied for by an assumed identity of Zhang Simao's known as "Long Chang", and changed the linked email. In June 2011, Zhang Simao sold the domain name "www.8.cc" to Li X for 125,000 RMB on an online domain name trading platform. On September 29, 2015, Zhang Simao was captured by the public security organs.

Procedural History and Outcomes

The people's procuratorate for the Xigang District of Dalian in Liaoning Province filed a criminal prosecution with the Xigang District people's court on March 22, 2016, alleging that defendant Zhang Simao had committed theft. On May 5, 2016, the Xigang District people's court made its judgment, finding that defendant Zhang Simao's conduct constituted the crime of theft, sentencing him to 4 years and 7 months imprisonment, and giving a concurrent fine of 50,000 RMB. After the first-instance trial verdict was announced, the party did not appeal, and the verdict has become effective.

Main Ideas

Internet domain names are assets in the legal sense, and theft of domain names may be found to be an act of theft.

Guidance Significance

Domain names are a convenient pathway for users to enter portal websites, and are a window for drawing network users to enter that website. After a domain name registrant registers a certain domain name, others can no longer apply to register and use that domain name, and therefore domain names are specific and unique. Domain names are a scarce resource and their owners have the rights to sell, modify, deregister, abandon, or otherwise dispose of them. Domain names have market exchange value, and their owners may trade them for currency. The interests of the registrant of domain names acquired through lawful channels are recognized and protected by law. In this case, the perpetrator used technical means to modify domain names' linked emails and registered ID, making it so that they illegally occupied the domain name, and causing the original owner to lose the lawful occupation and control of the domain name, with the goal of illegally acquiring the property value of the domain name; actions which caused direct economic harm to the domain name's owner. This activity has the characteristics of the crime of stealing others' assets and interests for the purpose of illegally occupying them, and should be dealt with as the crime of theft. As to the value of domain names, the purchase price, sale price, appreciation potential, degree of market interest, and so forth may now be comprehensively considered to make an overall determination.

Relevant Legal Provisions

《Criminal law of the People's Republic of China》

Article 264: Theft of public or private property where the amount is relatively large, or where there are multiple instances of theft,a domicile is entered a domicile for theft, weapons are carried during the theft, or pickpotting, are to be sentenced to up to three years imprisonment, short-term detention or controlled release and/or a fine; where the amount is huge or there are other serious circumstances, the sentence is between three and ten years imprisonment and a concurrent fine; where the amount is especially huge or there are other especially serious consequences, the sentence is 10 or more years imprisonment or indefinite detention, and a concurrent fine or confiscation of assets.

《Measures on the Administration of China Internet Domain Names》

Article 28: Applicants for domain name registration shall provide truthful, accurate, and complete domain name registration information, and sign a user registration agreement with the domain name registry service body.

After the domain name registration is complete, applicants for domain name registration become the owners of the registered domain name.

Article 29: The owner of a domain name shall respect the State's laws, administrative regulations, and rules regarding the internet.

Responsibility for violations of others' lawful rights and interests due to possession or use of a domain name is borne by the owner of the domain name.

Article 30: Registration of domain names shall periodically pay over domain name operation fees. Domain name registration management bodies shall draft specific measures for collection of domain name operation fees, and report this for filing with the Ministry of Industry and Information Technology.

The Case of Fraud by Four People Including Dong Liang (Proc. Guiding Case No. 38)

Key Words

Fraud, self-trading, car-hailing software, defrauding subsidies

Basic Case Details

Defendant Dong Liang is male, born in September 1981, and has no fixed occupation.

The defendant Tan Shenxian is male, born in July 1984, and has no fixed occupation.

Defendant Gao Jiong is male, born in December 1974, and has no fixed occupation.

Defendant Song Ruihua is female, born in April 1977 and was formerly an employee of the Shanghai Yangpu railway station.

In 2015, a certain online car-hailing platform registered and enrolled Dong Liang, Tan Shenxian, Gao Jiong, Song Ruihua as drivers, who separetely purchased or leased phone numbers not registered in their real names to sign up passenger accounts, and charge 10 or 20 RMB of car fare into the passenger accounts. Thereafter, they each falsely made car orders and received using their own driver account or other drivers' accounts under their actual control, sending a request for a relatively short ride, and then intentionally changed the destination to extend the travel distance, causing a substantial increase in the fare. As the amount of car fare stored in the accounts was quite small, they were unable to pay the entire fare. In this sort of situation, in order to increase market efficiency, the car company follows internal provisions to pay the fare upfront, and gives the driver a subsidy for accepting the order. The four defendants employed this tactic to illegally obtain the company's upfront fare payment and the subsidy for drivers accepting the order. Dong Liang gained 40,664.94 RMB, Tan Shenxian gained 14,211.99 RMB, Gao Jiong gained 38,943.01 RMB, and Song Ruihua gained 6,627.43 RMB.

Procedural History and Outcomes

The people's procuratorate for the Putuo District of Shanghai filed a criminal prosecution with the Putuo District people's court on April 1, 2016, alleging that the defendants Dong Liang, Tan Shenxian, Gao Jiong, and Song Ruihua had committed the crime of fraud. The people's procuratorate for the Putuo District of Shanghai filed a criminal prosecution with the Putuo District people's court on April 1, 2016, alleging that the defendants Dong Liang, Tan Shenxian, Gao Jiong, and Song Ruihua had committed the crime of fraud. On April 18 2016, The Putuo District people's court in Shanghai made it's judgment, finding that the defendants Dong Liang, Tan Shenxian, Gao Jiong, and Song Ruihua's conduct constituted the crime of fraud, and comprehensively considered that lighter sentences could be given as the four defendants had truthfully recounted their own criminal conduct after being caught and that the families of the four defendants had all made restitution on their behalf, and sentenced defendant Dong Liang to 1 year imprisonment and a concurrent fine of 1,000 RMB; sentenced defendant Tan Shenxian to 10 months imprisonment and a concurrent fine of 1,000 RMB, sentenced defendant Gao Jiong to one year imprisonment and a concurrent fine of 1,000 RMB, and sentenced defendant Song Ruihua to 8 months imprisonment and a concurrent fine of 1,000 RMB; with the ill gotten gains taken by the four defendants all being returned to the victim company. After the first-instance trial verdict was announced, the four defendants did not appeal, and the verdict has become effective.

Main Ideas

Acts of self-dealing or fictitious provision of services for the purpose of illegal possession, that defrauds internet companies' disbursements or order subsidies, where the amount is quite large, should be found to be the crime of fraud.

Guidance Significance

New forms of internet economy, such as online car-hailing and online food orders, are now developing rapidly. So as to seize the market, some internet companies use order subsidies to attract customer participation. Some crooks employ illegal tactics to fraudulently acquire the subsidies given by internet companies, and where the amount is larger, it might constitute criminal fraud.

In online car-hailing, the perpetrators use of the online car-hailing platform to communicate with the online car-hailing company and send fake car requests, causing the company to wrongly believe that the orders met the requirements for subsidies, and give the perpetrators upfront payments and subsidies based on this misperception; is conduct meeting the basic qualities and characteristics of criminal fraud, and is a manifestation of new form of fraud.

Relevant Legal Provisions

《Criminal law of the People's Republic of China》

Article 266:Theft of public or private property where the amount is larger is sentenced to up to three years imprisonment, short-term detention or controlled release and/or a fine; where the amount is huge or there are other serious circumstances, the sentence is between three and ten years imprisonment and a concurrent fine; where the amount is especially huge or there are other especially serious consequences, the sentence is 10 or more years imprisonment or indefinite imprisonment, and a concurrent fine or confiscation of property. Where this Law provides otherwise, follow those provisions.

 

 

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