Cctv newsToday (25th), the Supreme People’s Court and the Supreme People’s Procuratorate jointly held a press conference to release the Explanations of the Supreme People’s Court and the Supreme People’s Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases such as Illegal Use of Information Networks and Helping Information Network Crimes. The Interpretation makes it clear that it will be a crime to set up a website for carrying out illegal and criminal activities in the name of a state organ or financial institution.
The Interpretation stipulates that if a website is set up to carry out illegal and criminal activities in the name of a state organ or financial institution, if the number of websites for carrying out illegal and criminal activities reaches more than three or the cumulative number of registered accounts reaches more than 2,000, it will be considered as "serious" and can be convicted.
Jiang Qibo, Director of the Supreme People’s Court Research Office.: If the number of communication groups used to carry out illegal and criminal activities reaches more than five, or the cumulative number of group members accounts reaches more than 1,000, or if the information related to illegal and criminal activities is released or for the purpose of carrying out illegal and criminal activities, it is considered as "serious".
In view of the fact that many cyber criminals, especially telecommunication network fraudsters, set up websites to carry out illegal and criminal activities in the name of state organs or financial institutions in practice, the Interpretation has set a lower threshold for conviction, so as to appropriately reduce the difficulty of obtaining evidence and truly realize the "early attack and small attack" on cyber crimes.
Jiang Qibo, Director of the Supreme People’s Court Research Office.For example, the Interpretation specifically stipulates that "setting up a website to carry out illegal and criminal activities in the name of a state organ or financial institution" constitutes "serious circumstances", that is, setting up such a website can constitute a crime.
The Interpretation stipulates that the illegal use of information network crimes with an illegal income of more than 10,000 yuan belongs to "serious circumstances". In addition, the Interpretation stipulates that those who have received administrative punishment for illegally using information networks, helping criminal activities of information networks, endangering the security of computer information systems within two years, and illegally using information networks, are "serious" and are sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also be fined.
The Criminal Law stipulates that anyone who knowingly uses information networks to commit crimes, provides technical support such as Internet access, server hosting, network storage and communication transmission, or provides assistance such as advertising promotion and payment and settlement, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or shall only be fined. The new judicial interpretation clarifies the presumption rule of subjective knowledge of the crime of helping information network criminal activities.
According to the criminal law, it constitutes the crime of helping information network criminal activities, which requires the perpetrator to "know that others use information network to commit crimes" subjectively.
Jiang Qibo, Director of the Supreme People’s Court Research Office.According to the situation of judicial practice, the Interpretation summarizes and clarifies the presumption of subjective knowledge of the crime of helping information network criminal activities, that is, providing technical support or help for others to commit crimes. Under any of the following circumstances, the perpetrator can be deemed to know that others are using information network to commit crimes, unless there is evidence to the contrary.
Presumption of subjective knowledge of the crime of helping information network criminal activities: (1) The relevant acts are still carried out after being informed by the regulatory authorities; (2) Failing to perform the statutory management duties after receiving the report; (3) The transaction price or method is obviously abnormal; (4) providing programs, tools or other technical support and assistance specially used for illegal crimes; (5) Frequent use of hidden Internet access, encrypted communication, data destruction and other measures or use of false identities to evade supervision or investigation; (6) Providing technical support and assistance for others to evade supervision or investigation; (7) Other circumstances that are sufficient to determine that the perpetrator knows.
Criminals who illegally use information networks can be banned from occupation.
How to prevent cyber criminals from "returning to their old jobs"? The judicial interpretation issued today has also been clarified. The Interpretation stipulates that criminals who illegally use information networks can declare occupational prohibition and prohibition orders according to law.
According to the provisions of the Criminal Law, if a person commits a crime by taking advantage of his occupation, the people’s court may, according to the situation of the crime and the need to prevent recidivism, prohibit him from engaging in related occupations from the date of execution of the penalty or the date of parole for a period of three to five years; Sentenced to public surveillance or suspended sentence may, according to the circumstances of the crime, prohibit criminals from engaging in specific activities during the execution period. Jiang Qibo, director of the Research Office of the Supreme People’s Court, said that in view of the fact that cyber crimes are committed again to a considerable extent and many criminals "return to their old jobs", the Interpretation specifically stipulates that criminals who refuse to fulfill their obligations of information network security management, illegally use information networks and help information network criminal activities can declare occupational bans and restraining orders according to law.
Jiang Qibo, Director of the Supreme People’s Court Research Office.: "If a person is sentenced to punishment for committing a crime as stipulated in this Interpretation, he may declare the occupational ban according to the situation of the crime and the need to prevent recidivism; If a person is sentenced to public surveillance or suspended sentence, he may declare an injunction according to the circumstances of the crime. "
Online payment causes user information disclosure or criminal responsibility.
It is the premise and foundation of maintaining network security for network service providers to fulfill their obligations of information network security management stipulated by laws and administrative regulations. The "Interpretation" clarifies that a network service provider who refuses to perform the obligation of information network security management and refuses to make corrections after being ordered by the regulatory authorities, resulting in the disclosure of more than 500 pieces of track information, communication content, credit information and property information, will be convicted.
Explain that the scope of "network service providers" includes units and individuals that provide the following services:(1) Information network access, calculation, storage and transmission services such as network access and domain name registration and resolution; (2) Information network application services such as information release, search engine, instant messaging, online payment, online reservation, online shopping, online games, online live broadcast, website construction, security protection, advertising promotion, application stores, etc.; (3) Public services such as e-government, communication, energy, transportation, water conservancy, finance, education and medical care provided by information networks.
The above-mentioned units or individuals, through the departments of network information, telecommunications, public security, etc., order the network service providers to take corrective measures in the form of rectification notices or other documents, and refuse to make corrections. If there are serious circumstances, it constitutes a crime.
Jiang Qibo, Director of the Supreme People’s Court Research Office.In order to unify the judicial application, the Interpretation defines the criteria for the crime of refusing to perform the obligation of information network security management according to different situations.
The "Interpretation" issued this time clarifies the above-mentioned criteria for conviction, and refines "causing a large amount of illegal information to spread" into:Causing the dissemination of more than 200 illegal video files; Causing the dissemination of more than 2,000 illegal information other than illegal video files; Seven situations, such as the actual number of hits on illegal information reaching more than 50 thousand. The situation that will lead to the disclosure of user information and cause serious consequences is clearly defined as: causing the disclosure of more than 500 pieces of track information, communication content, credit information and property information; Causing the disclosure of more than 5,000 pieces of user information, such as accommodation information, communication records, health and physiological information and transaction information, which may affect personal and property safety; Eight situations that cause serious consequences such as death, serious injury, mental disorder or kidnapping of others.