The Upstream Crime of the Crime of Assisting Information Network Criminal Activities Must Be a "Crime Committed by Exploiting Information Networks" — Taking an Illegal Business Operation Case Involving the Purchase and Sale of Foreign Exchange Through Virtual Currency as an Example (Part I)
Abstract:
If a relative or friend of yours has been taken into custody for exchanging foreign currency through virtual currency, or if you yourself are facing the charge of "converting the crime of illegal business operation into the crime of assisting information network criminal activities," this article will directly answer the question you care about most: Does buying and selling foreign exchange through WeChat, Telegram, or virtual currency necessarily constitute the crime of assisting information network criminal activities? The answer is: not necessarily. The key lies in whether the information network played a core role in the entire crime, rather than merely using a mobile phone for chatting. This article will clearly explain why this legal gap exists, how the procuratorate may determine the matter, where defense counsel will intervene, and why the logic that "if illegal business operation is not established, the charge should be changed to the crime of assisting information network criminal activities" does not hold up legally. After reading, you will have a basic judgment on the direction of the case and the room for defense.
Keywords:
crime of assisting information network criminal activities; committing a crime by exploiting information networks; foreign exchange through virtual currency; crime of illegal business operation; determination of upstream crime
Special Statement:
This article is an original article by Lawyer Shao Shiwei and represents only the author's personal views. It does not constitute legal consultation or legal advice on any specific matter. Article reprinting | Legal consultation | Business exchange, contact number: 13262718713 (same number on WeChat)
Introduction:
The crime of assisting information network criminal activities is a charge that appears simple but becomes very complex upon closer examination. It is simple because the wording of the legal provision is overly simple; it is complex because judicial practice involves a wide variety of scenarios, and the legal provision does not further elaborate on several key concepts, which instead creates controversy in application.
The above is what Lawyer Shao felt during the recent handling of a case suspected of illegal business operation involving the purchase and sale of foreign exchange through virtual currency.
In this case, after lengthy communication and negotiation, the prosecution ultimately accepted the view put forward by Lawyer Shao: the evidence in this case is insufficient to establish the crime of illegal business operation. However, after the prosecution and defense reached agreement on this point, further communication produced a new disagreement — the prosecution still insisted that even if this case does not constitute the crime of illegal business operation, it should still constitute the crime of assisting information network criminal activities.
In this regard, I believe that insufficient evidence for the crime of illegal business operation does not mean that one may settle for the second best and change the charge to the crime of assisting information network criminal activities. The crime of assisting information network criminal activities has its own independent and complete constitutive requirements.If the upstream currency-swap arrangement does not constitute a 'crime committed by another person by exploiting information networks,' the crime of assisting information network criminal activities cannot be established; under the existing facts and evidence in this case, the client does not constitute any crime.
This therefore leads to the question to be discussed in this article:
Even if the upstream crime used WeChat, Telegram, online banking or virtual assets, does it necessarily constitute 'committing a crime by exploiting information networks' as provided in Article 287-2 of the Criminal Law? What conditions must the upstream currency-swap arrangement satisfy before it can qualify as an information network crime for purposes of the crime of assisting information network criminal activities?
l Author of this article: Lawyer Shao Shiwei
I. What constitutes 'committing a crime by exploiting information networks' in the crime of assisting information network criminal activities is a gap in the law
The normative documents concerning the crime of assisting information network criminal activities include: Article 287-2 of the Criminal Law (added by Amendment IX to the Criminal Law in 2015), the document Fa Fa [2016] No. 32 issued by the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security, the interpretation Fa Shi [2019] No. 15 issued by the Supreme People's Court and the Supreme People's Procuratorate, the minutes on the 'Card-Breaking' campaign Gao Jian Si Ting [2020] No. 12, the document Fa Fa [2021] No. 22 issued by the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security, the Anti-Telecom and Online Fraud Law (effective December 1, 2022), the March 22, 2022 minutes on the 'Card-Breaking' campaign, and the 2025 opinions on the crime of assisting information network criminal activities, Fa Fa [2025] No. 12, issued by the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security.
After Lawyer Shao reviewed all of the above normative documents,she found that none of the documents defines or explains the concept of 'committing a crime by exploiting information networks' itselfIn other words, all the documents take as a given the premise that the upstream conduct of the crime of assisting information network criminal activities constitutes a 'crime committed by exploiting information networks,' and then proceed directly to discuss downstream issues such as 'knowingly,' 'serious circumstances,' and 'the distinction between the crime of assisting information network criminal activities and the crime of concealing or disguising criminal proceeds.'
And this gap in the law is precisely where the room for defense lies.
When the prosecution charges the crime of assisting information network criminal activities, Lawyer Shao submits that the defense has the right to require the prosecution to prove that the upstream crime constitutes a 'crime committed by exploiting information networks,' rather than merely 'using information network tools in the course of committing the crime'; the prosecution cannot treat this premise as self-evident.
II. The test: the information network must enter into the actus reus of the upstream crime
Where the law does not directly provide a definition, the meaning and boundaries of "committing a crime by using an information network" should be determined through the literal text of the statutory provisions, their systematic position, the structure of the offense, and the types of aiding conduct.
Attorney Shao's assessment is:The information network must play a substantive, core role as a tool or platform in the actus reus of the upstream crime.If the information network appears only incidentally at stages other than the actus reus, such as communication, planning, or post-offense handling, and the actus reus of the upstream crime is itself completed offline, then it does not constitute "committing a crime by using an information network."
The following argument is made from four perspectives:
From the systematic position of Article 287 of the Criminal Law
Article 287 of the Criminal Law was originally a cautionary provision on committing crimes by using computers, and its legislative purpose was to remind judicial personnel that computers/networks are merely criminal tools, that the mere involvement of computers should not lead to consideration only of computer crimes, and that conviction and punishment should instead be based on the crime actually constituted (such as fraud or theft).
The 2015 Amendment (IX) to the Criminal Law added two articles after Article 287:
Article 287-1 (crime of illegally using information networks): It directly provides that online preparatory acts that originally belonged to other crimes (such as fraud) constitute an independent crime (treating preparatory acts as completed offenses).
Article 287-2 (crime of aiding information network criminal activities): It independently criminalizes acts of providing technical support, payment settlement, and other assistance while knowing that another person is using an information network to commit a crime (treating aiding acts as principal offenses).
It can thus be seen that "committing a crime by using an information network" in the crime of aiding information network criminal activities under Article 287-2 should fall between the two:
It is broader than Article 287-1 and is not limited to purely cyberspace acts such as establishing websites or publishing information;
It is narrower than Article 287: not every crime in which a mobile phone or computer was used at some point in the process counts.
If Article 287(2) had exactly the same meaning as Article 287, the predicate offenses for the crime of assisting information network criminal activities could be any crime, and that crime would be reduced entirely to a catch-all offense, which would not accord with the legislative intent. At the same time, if the "crime" in Article 287(2) were limited to the conduct specified in Article 287(1), the scope of application of the crime of assisting information network criminal activities would be extremely narrow and could hardly cover the cases that account for the vast majority in practice, such as telecom fraud and online gambling, which would likewise contradict the legislative purpose of Amendment IX to the Criminal Law.
According to the 2025 Opinions on Several Issues Concerning the Handling of Criminal Cases Such as the Crime of Assisting Information Network Criminal Activities, issued by the "Two Supreme Courts and One Ministry" [1], the crime of assisting information network criminal activities was added "to respond to the development and changes of new types of information network crimes," with the aim of combating "a series of black and gray industries that have arisen around crimes such as telecom and online fraud."
Therefore, "using information networks to commit crimes" in Article 287(2) has its own independent meaning within the statutory scheme; it is neither equivalent to the fully open scope of Article 287 nor to the highly restricted scope of Article 287(1).
From the full name of the offense
The full name of this offense is the "crime of assisting information network criminal activities," not the "crime of assisting criminal activities." "Information network" qualifies "criminal activities." The structure of the offense name itself indicates that it targets criminal activities having an information-network character, not all criminal activities. For criminal activities to have an "information network" character, the information network cannot merely appear incidentally; it must play a substantive role in the crime.
From the assisting conduct enumerated in the statutory provision
Article 287(2) of the Criminal Law enumerates the forms of assistance as "technical support such as internet access, server hosting, network storage, and communication transmission" and "assistance such as advertising promotion and payment settlement." These forms of assisting conduct are themselves entirely technical or service-related at the information-network level. If a predicate offense has no substantive connection with an information network, it simply does not need these types of assistance. When the legislature designed the types of assisting conduct, the predicate offenses it presupposed were those that depend on information networks at the level of the act of perpetration.
From the criminal-law meaning of "commit"
In the criminal-law context, "commit" in "using information networks to commit crimes" generally refers to the act of perpetration of a crime, rather than preparatory or post-offense acts. Accordingly, this expression should mean that the information network is used at the stage of the act of perpetration, as the tool or platform through which the act of perpetration is carried out. If the information network is used only at the preparatory stage, such as communication and planning, or at the post-offense stage, such as disposing of proceeds, while the act of perpetration itself is completed offline, it should not be found to constitute "using information networks to commit crimes."
III. Three Understandings in Practice and Theory
Because there is no express statutory guidance, Attorney Shao, after reviewing judicial practice and academic views, found that there are roughly three positions on the scope of "using information networks to commit crimes."
The first isa broad interpretation, which holds that it is sufficient if information networks are involved in the course of the crime, including offline drug trafficking coordinated through networks and offline intentional injury communicated via WeChat; in practice, a large number of judgments have in fact adopted this position.
The second isa restrictive interpretation, represented by Professor Liu Yanhong[2], which emphasizes that only by limiting the object of the aiding conduct to persons who "commit crimes by utilizing information networks" can the crime of aiding information network criminal activities be directly linked to the principal offender of the network crime, thereby reflecting the independent legal nature of the crime of aiding information network criminal activities; "utilizing information networks" must be the core means of the crime, and the information network should possess instrumental irreplaceability or core dependence with respect to the upstream crime.
The third isa compromise interpretation, which distinguishes object-type network crimes from tool-type network crimes and holds that the crime of aiding information network criminal activities should at least cover tool-type network crimes, but should not include traditional crimes in which networks are used only incidentally at a certain stage.
Lawyer Shao's view is consistent with the direction of the restrictive interpretation and the compromise interpretation.
IV. The determination must ultimately return to the specific currency-exchange model
However, the theoretical criteria for determination must ultimately be applied back to the behavioral models in specific cases. There are multiple modes of operation for matched-order currency exchange; some are completed entirely offline, while others rely on online payment systems to operate, and under different models the conclusions on identifying "committing crimes by utilizing information networks" are entirely different. In the second part of this articleUpstream Offenses of the Crime of Assisting Information Network Criminal Activities Must Be "Crimes Committed by Exploiting Information Networks" — Taking the Illegal Business Operation Case of Virtual Currency Trading in Foreign Exchange as an Example (Part II)This article will, in conjunction with this case, specifically analyze three typical models of matched-order currency exchange, and demonstrate why the prosecution's possible rebuttal logic cannot hold.
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About the Author
Attorney Shao Shiwei has long been deeply engaged in criminal defense and compliance work in the Web3 and crypto assets fields, and has accumulated substantial practical experience in economic crimes, cybercrimes and new types of cases involving virtual currency.
She is experienced in handling major, difficult and complex criminal cases involving charges such as the crime of opening a casino, fraud, illegal business operation and embezzlement by taking advantage of position.
The team provides legal services including full-process defense in criminal cases, the establishment of corporate criminal compliance systems, and the prevention and management of criminal legal risks for individuals and enterprises.
Since beginning practice, the lawyer has handled more than 300 criminal cases cumulatively, of which more than 60 achieved substantive defense outcomes such as withdrawal of the case, non-prosecution, application of a suspended sentence, or reduction of charges to a lower tier.
This article was first published on the WeChat public account [Lawyer Shao Shiwei]. For article reprinting | legal consultation | business exchange, contact telephone: 13262718713 (same number on WeChat).
