Interpretation on Several Questions on the Application of Law in Handling Criminal Cases Such as Criminal Use of Information Networks, and Assisting in Criminal Information Network Activities

Promulgation Date: 2019-10-21
Title: 最高人民法院、最高人民检察院关于办理非法利用信息网络、帮助信息网络犯罪活动等刑事案件适用法律若干问题的解释
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Promulgating Entities: The Supreme People's Court, The Supreme People's Procuratorate
Source of text: 最高法公众号

So as to lawfully punish crimes such as refusals to perform information network security management obligations, illegal use of information networks, and aiding criminal activities on information networks; and to preserve normal network order; on the basis of the "Criminal Law of the People's Republic of China" and the" Criminal Procedure Law of the People's Republic of China"; the following Interpretation on handling such cases is hereby made:

Article 1: Units and individuals providing the following services shall be found to be "network service providers" as provided for in paragraph 1 of Criminal Law article 286-1:

(1) Network access, DNS resolution, and other information network access, computing, storage, or transmission services;

(2) Information publishing, search engines, instant messaging, online payment, online booking, online sales, online games, online livestreaming, website construction, security protection, advertisement promotions, app stores, and other information networks application services;

(3) Use of information networks to provide public services such as e-governance, communications, power, transportation, water, finance, education, and medical care.

Article 2: “Regulatory departments order the adoption of corrective measures" , as provided for in paragraph 1 of Criminal Law article 286-1, refers to internet information, telecommunications, public security, and other such departments that undertake information network security oversight duties in accordance with laws and administrative regulations, use of a written corrective order or other document to order network service providers to adopt corrective measures.

Findings of a "refusal to make corrections upon being ordered by regulatory departments to employ corrective measures, shall be upon a decision based on comprehensive consideration of whether the regulatory departments' corrective order has a basis in laws or administrative regulations, whether the corrective measures and time period are clear and reasonable, whether the network service providers have the capacity to adopt corrective measures as required, and other such factors.

Article 3: In any of the following circumstances, refusals to perform information network security management obligations shall be found to be "causing transmission of large volumes of unlawful information" as provided for in item 1 of paragraph 1 of article 286-1 of the Criminal Law:

(1) Causing transmission of 200 or more illegal video documents;

(2) Causing transmission of 2,000 or more non-video documents with illegal information;

(3) Causing transmission of illegal information where the amounts do not reach the standards provided in items (1) and (2), but if taken together converting by the relevant ratios, the relevant quantity standards are met.

(4) Causing transmission of illegal information to 2,000 or more user accounts;

(5) Causing the use of chat groups with group members totaling 3,000 or more, or social networks with 30,000 or more followers, to transmit illegal information;

(6) Causing illegal information to be actually clicked 50,000 or more times;

(7) Other circumstances causing mass transmission of illegal information.

Article 4: In any of the following circumstances, refusals to perform information network security management obligations causing leaks of user information shall be found to be "causing serious consequences" as provided for in item (2) of paragraph 1 of article 286-1 of the Criminal Law:

(1) Causing the leak of 500 or more items of tracking information, communications information, credit reporting information, or asset information;

(2) Causing the leak of 5,000 or more items of housing information, communications records, physical health information, transaction information, and other such user information that might impact security in one's person or property；

(3) Causing the leak of 50,000 or more items of user information other than that provided for in (1) and (2);

(4) Where the amounts do not reach the standards provided in items 1-3, but if taken together converting by the relevant ratios, the relevant quantity standards are met.

(5) Caused serious consequences to others such as death, serious injury, psychiatric abnormalities, or being kidnapped;

(6) Caused major economic losses;

(7) Seriously disrupted social order;

(8) Caused other serious consequences.

Article 5: In any of the following circumstances, refusals to perform information network security management obligations causing destruction of evidence in criminal cases that impacts conviction or sentencing shall be found to be "serious circumstances" as provided for in item (3) of paragraph 1 of artel 286-1 of the Criminal Law:

(1) Causing destruction of evidence in cases of crimes endangering national security, terrorist activity crimes, underworld criminal organization crimes and embezzlement and bribery；

(2) Causing destruction of evidence in cases of crimes that might have a sentence of 5 years imprisonment or higher;

(3) Causing destruction of evidence in criminal cases several times;

(4) Causing serious impact to criminal proceedings;

(5) Other situations where the circumstances are serious.

Article 6: In any of the following circumstances, refusals to perform information network security management obligations shall be found to be "having other serious circumstances" as provided for in item (4) of paragraph 1 of article 286-1 of the Criminal Law:

(1) Not keeping logs or implementing identity verification obligations for the vast majority of users;

(2) Refusing to make changes upon being ordered to do so multiple times within 2 years;

(3) Causing information network services to be primarily used for violations and crimes;

(4) Causing information network services or network facilities to be used to carry out network attacks, seriously impacting production and livelihoods;

(5) Causing information network services to be used to carry out crimes endangering national security, terrorist activity crimes, underworld criminal organization crimes, embezzlement and bribery, of other major crimes;

(6) Causing damage to state organs' information networks or those provide public services in fields such as communications, power, transportation, water, finance, education, and medical care; seriously impacting production and livelihoods;

(7) Other situations of serious violations of information network security management obligations.

Article 7: "Illegal and Criminal", as provided for in Criminal Law article 287-1, includes criminal conduct and illegal conduct that is of the type provided for in the Specific Provisions of the Criminal Law, but that has not yet constituted a crime.

Article 8: Websites and chat groups established for the purpose of carrying out illegal activities or that are used primarily for illegal activities after being established, shall be found to be "websites and chat groups used for illegal and criminal activities such as fraud, transmitted criminal methods, and producing or selling prohibited or controlled items", as provided for in item (1) of paragraph 1 of Criminal Law article 287-1.

Article 9: Use of information networks to provide links, screen shots, QR codes, visitor account passwords, and other services to draw in visitors to information, shall be found to be "publishing information" as provided for in items (2) and (3) of paragraph 1 of Criminal Law article 287-1.

Article 10: In any of the following circumstances, illegal use of information networks shall be found to be 'serious circumstances' as provided for in paragraph 1 of Criminal Law article 287-1:

(1) Impersonating a state organ or financial institutions to establish a website used to carry out illegal or criminal activities;

(2) Establishing websites used to carry out illegal or criminal activities, numbering 3 or more, or with a cumulative number of registered users reaching 2,000 or more;

(3) Establishing chat groups used to carry out illegal or criminal activities, numbering 5 or more, or with a cumulative number of member accounts totaling 1,000 or more;

(4) Publishing information related to violations or crimes, or publishing information for the perpetration of violations or crimes, in any one of the following circumstances:

1. Publishing relevant 100 or more items of related information on websites;

2. Transmitting illegal information to 2,000 or more user accounts;

3. Sending relevant information to groups with a total number of 3,000 or more members;

4. Using social networks to transmit relevant information to 30,000 or more total followers;

(5) Where unlawful gains are 10,000 RMB or more;

(6) Where, having received administrative punishments for illegally using information networks, assisting in criminal information network activities, or endangering computer information system security within the preceding two years, one again illegally uses information networks;

(7) Other situations where the circumstances are serious.

Article 11: Where providing technical support or assistance to the commission of crimes in any one of the following circumstances, the actor may be found to clearly know that others are using information networks to perpetrate crimes, except where the is relevant refuting evidence:

(1) After being informed by regulatory departments, they continue to carry out the relevant conduct;

(2) After receiving a report, the do not perform their legally-prescribed management duties;

(3) Transaction prices or methods are clearly irregular;

(4) Provided programs, tools, or other technical support and assistance that is specially used in violations or crimes;

(5) Frequently used measures such as hidden internet access, encrypted communications, or destruction of data, or used fake identities, to avoid regulation or elude investigation;

(6) Provided technical support or assistance to others for avoiding regulation or eluding investigation;

(7) Other situations sufficient to determine knowledge of the actor.

Article 12: In any one of the following circumstances, where one knows that in any one of the following circumstances are being used to commit crimes, providing assistance to the crime shall be found to be 'serious circumstances' as provided for in paragraph 1 of Criminal Law article 287-2:

(1) Provided assistance to 3 or more targets;

(2) Payment or settlement amounts were 200,000 RMB or more;

(3) Providing capital of 50,000 RMB or more through advertisements or other such means;

(4) Where unlawful gains are 10,000 RMB or more;

(5) Where, having received administrative punishments for illegally using information networks, assisting in criminal information network activities, or endangering computer information system security within the preceding two years, one again assists criminal information network activities;

(6) Where the crime that the recipient of the assistance carried out causes serious consequences;

(7) Other situations where the circumstances are serious.

In carrying out the activity provided for in the preceding paragraph, where due to objective capacity limitations there was no way to confirm whether recipient of assistance had reached the level of a crime, but the total numbers reached five times the standards provided for in items (2)-(4) of the preceding paragraph, or especially serious consequences were caused, criminal responsibility shall be pursued for the crime of assisting information networks criminal activities.

Article 13: Where the criminal conduct of the recipient of assistance can be confirmed, but there is no way to pursue criminal responsibility for reasons such as their not yet having been brought in, not yet been lawfully adjudged, or not yet achieved the age of criminal responsibility; it does not impact the finding of assistance in criminal information networks activities.

Article 14: Where a unit commits crimes provided for in this Interpretation, the directly responsible managers and other directly responsible personnel shall be tried and punished according to the provisions of this interpretation regarding the standards for conviction and punishment of crimes by natural persons, and the unit is to be fined.

Article 15: Where on comprehensive consideration of the degree of social danger, repentant attitude, and other such circumstances, it is found that the circumstances of the crime are slight, it may be decided to not prosecute or to waive criminal penalties; where the circumstances are clearly slight and the harm is not large, it is not to be handled criminally.

Article 16: Where there are several instances of refusal to perform information network security management obligations, illegal use of information networks, or assistance in criminal information networks activities that constitute crimes and shall be lawfully pursued; or where within two years there are several instances of carrying out the conduct described above that has not been addressed; the volumes or amounts are calculated cumulatively.

Article 17: Where commission of the crimes provided for in this Interpretation have been given criminal punishments, professional prohibitions may be announced in accordance with law based on the circumstances of the crime and the need to prevent further crime; where the sentence was controlled release or a suspended sentence, based on the circumstances of the crime, an injunction may lawfully announced.

Article 18: Where crimes provided for in this Interpretation are committed, fines shall be lawfully imposed based on comprehensive consideration of the degree of harm, the amount of unlawful gains, and the defendants' criminal record and attitude of repentance and remorse, and so forth.

Article 19: This Interpretation takes effect on November 1, 2019.