Attorney Shao Shiwei | Can the Crime of Concealing Criminal Proceeds Be Reclassified as the Crime of Aiding Information Network Criminal Activities? Which Carries a Lighter Sentence?

Introduction:

There are significant differences in sentencing standards between the Crime of Aiding Information Network Criminal Activities ("Bangxin") and the Crime of Concealing Criminal Proceeds ("Yanyin"). The maximum sentence for Bangxin is less than three years, whereas the maximum sentence for Yanyin is less than seven years.

Therefore, correctly distinguishing between these two crimes is of utmost importance to the parties involved.

Author of this article: Attorney Shao Shiwei

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We share a case of [minor crime defense] that we recently successfully handled:

Xiao Wang and Xiao Zhang were coworkers at a construction site. One day, Xiao Wang asked Xiao Zhang, "There's a side gig paying 1,500 yuan a day. Do you want to earn it?" Xiao Zhang asked what kind of side gig it was that paid so well. Xiao Wang took Xiao Zhang to his residence, guided him to register on a certain app, and linked multiple bank cards to it. Subsequently, large sums of money were continuously transferred into Xiao Zhang's bank cards. Xiao Wang instructed Xiao Zhang to transfer the funds received in the bank cards into the app, then withdraw them to his other bank cards, after which the relevant funds were transferred to other unknown accounts. Unfortunately, Xiao Zhang was summoned by the public security authorities for questioning after only two weeks and was detained on suspicion of the Crime of Concealing Criminal Proceeds (Yanyin). The transaction volume processed by Xiao Zhang amounted to several hundred thousand yuan, and the procuratorate proposed a sentencing recommendation of four to five years of fixed-term imprisonment.

In this case, we adopted a [minor crime defense] strategy, arguing that Xiao Zhang's actions should constitute the Crime of Aiding Information Network Criminal Activities (Bangxin).

First, regarding whether the actor knowingly participated in the upstream crime: The Crime of Concealing Criminal Proceeds requires the actor to know that the items are criminal proceeds or gains derived therefrom. In contrast, the knowledge required for the Crime of Aiding Information Network Criminal Activities is limited to knowing that others are using information networks to commit crimes. In this case, Xiao Zhang's subjective intent was merely to earn extra income, and he was unaware of the specific nature of the upstream crime.

Second, the distinction in aiding behaviors: The Crime of Concealing Criminal Proceeds involves aiding acts committed after the upstream crime has been completed (post-facto assistance). In contrast, the acts constituting the Crime of Aiding Information Network Criminal Activities mainly occur during the commission of the upstream crime, serving as auxiliary means facilitating its completion. In this case, based on the victim's report and the corresponding bank transaction records, the characteristics of the actor's behavior were more consistent with the Crime of Aiding Information Network Criminal Activities.

Ultimately, the court accepted our defense opinion and sentenced the defendant to one and a half years of fixed-term imprisonment for the Crime of Aiding Information Network Criminal Activities.

Crimes involving the provision of bank cards for payment and settlement services for upstream crimes may constitute either the Crime of Concealing Criminal Proceeds or the Crime of Aiding Information Network Criminal Activities. In practice, it is relatively common for judicial authorities to render different verdicts for similar cases ("same case, different judgments") regarding the classification of such offenses.

The Crime of Aiding Information Network Criminal Activities carries a lighter charge, and its criteria for initiating investigations are higher and clearly defined.

According to Article 287-2 of the Criminal Law, constituting the Crime of Aiding Information Network Criminal Activities requires meeting the threshold of "serious circumstances." Determination of "serious circumstances": (1) Providing assistance to three or more objects; (2) Payment and settlement amounts exceeding 200,000 yuan; (3) Providing funds through advertising or other methods exceeding 50,000 yuan; (4) Illegal gains exceeding 10,000 yuan; (5) Having received administrative penalties for illegally using information networks, aiding information network criminal activities, or endangering computer information system security within two years, and again engaging in aiding information network criminal activities; (6) The crimes committed by the aided objects causing serious consequences; (7) Purchasing, selling, or renting five or more credit cards, bank accounts, non-bank payment accounts, internet account passwords with payment and settlement functions, network payment interfaces, or online banking digital certificates; (8) Purchasing, selling, or renting twenty or more mobile phone cards, data cards, or IoT cards belonging to others; (9) Other circumstances deemed serious.

Regarding the Crime of Concealing Criminal Proceeds, on April 13, 2021, the Supreme People's Court issued a Decision on Amending the "Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Concealing or Disguising Criminal Proceeds and Gains Derived Therefrom," abolishing the provisions on the criteria for initiating investigations for this crime under the former Judicial Interpretation [2015] No. 11, and stipulating:

Effective April 15, 2021, cases involving the Crime of Concealing Criminal Proceeds shall be convicted and punished in accordance with the law, comprehensively considering the nature of the upstream crime, the circumstances of concealing or disguising criminal proceeds and gains derived therefrom, the consequences, and the degree of social harm.

In other words, the criteria for conviction and sentencing for the Crime of Concealing Criminal Proceeds must be determined in conjunction with the specific charge of the upstream crime and the severity of the circumstances, rather than applying a uniform standard for initiating investigations.

Consequently, for the actor, being classified under the Crime of Concealing Criminal Proceeds, as opposed to the Crime of Aiding Information Network Criminal Activities, entails facing a stricter and more complex background for conviction and sentencing.

Therefore, if a party is detained on suspicion of either the Crime of Aiding Information Network Criminal Activities or the Crime of Concealing Criminal Proceeds, it is advisable for their family members to promptly engage a lawyer. Only by understanding the full scope of the case at an early stage can one maintain clear and accurate control over the case's trajectory, thereby striving for the optimal outcome for the party involved.