Distinguish three dimensions to grasp the relationship between crime and punishment of providing documents illegally

2022-06-21 0 By

News sources: justice network criminal law amendment (11) to revise the relevant provisions of the intermediary organization personnel crimes, the original assets appraisal, capital verification, accounting, auditing, legal services have clear intermediary organizations such as main body, a new sponsor, safety evaluation, intermediary organizations of environment impact assessment, environmental monitoring personnel as the main crime;On the basis of the original first step of sentencing, the provisions of “fixed-term imprisonment of more than five years and less than 10 years, and also a fine” were added;The act of accepting bribes by intermediary organization personnel to provide false documents should be seriously punished, which reflects the spirit of strict legislation.Since the criminal behavior of the intermediary organization personnel providing proof documents illegally often serves or obeies the main criminal behavior such as “routine loan”, it is easy to be evaluated as an accomplice of the principal crime or independently identified as the charge of the intermediary organization personnel. It is suggested to consolidate the identification of relevant criminal elements from the following three dimensions of proof.From the subjective and knowing dimension of proof, the author reveals the midemonic contact and cognitive content between the intermediary organization personnel and the principal offender.As a relatively neutral professional and technical personnel, for its professional features need to contact the relevant units and personnel to produce business, when its violation of working rules by its expertise to help others crime, convicted and punished according to criminal law set up exclusive charges, such as helping information network crime crime, crime of illegal credit card information, etc., if you want to form their help ZhuZui accomplice hasMore stringent subjective requirements and proof requirements.If subjectively, he is only aware that others use information network to commit a crime, but he is not sure about the specific crime, or although he knows what kind of crime is committed by others, but he is not aware of the specific implementation process and details of the crime, he will generally be punished as the crime of helping information network crime.The related crimes carried out by intermediary organization personnel have the characteristics of independent behavior evaluation.In judicial practice, some people argue that notarization personnel provide proof documents, it is determined by the accomplice of the principal crime they help or by the independent identification of the specific crime, mainly depends on the subjective, if subjectively knowing that others carry out the “routine loan” crime, it constitutes the accomplice of the principal crime such as fraud.The main basis for this judgment is the opinions on Several Issues concerning handling the Criminal Cases of “Daodai” (hereinafter referred to as the Opinions), which stipulates that those who knowingly assist in handling the criminal cases of “Daodai” shall be punished as accomplices in related crimes, unless otherwise provided for in the Criminal Law and judicial interpretation.The author thinks that the understanding and application of “Opinions” should not be evaluated simply by accomplice, but should correctly grasp the subjective and objective conditions of the establishment of joint crime.The criminals of “trick loan” make clear the property guarantee relationship between them and the victim through notarization, and then make the fact of the victim’s breach of contract by illegal means, and achieve the purpose of illegally possessing the victim’s property according to the conditions agreed in the notarization documents.The act of notary issuing notarial documents is objectively beneficial to the implementation of the “routine loan” crime, but it is not enough to investigate the criminal responsibility of the notary, especially the criminal responsibility of his accomplices in fraud.Subjective knowledge should be understood as the definite knowledge of committing fraud and other specific crimes. The requirements of criminal proof should reach the degree of certainty, and objective imputation should be prevented.How to prove the subjective knowledge of intermediary personnel, the Opinions require a comprehensive analysis and determination of subjective and objective factors such as the actor’s cognitive ability, past experience, number and means of behavior, relationship with codefendants and victims, profit situation, whether he has ever been punished for “routine loan”, whether he deliberately avoids investigation.Although the notary issued false certification documents, in the case of excluding its intentional issuance, can be identified as the issuance of certification documents of major false crime;If the document is intentionally produced but the degree and content of the document cannot meet the requirements of the knowledge in the sense of accomplice, it can be regarded as the crime of providing false documents.Starting from the dimension of proof of objective participation in profit sharing, the degree of behavioral intervention of intermediary organization personnel in the implementation of the principal crime is verified.It is an easy standard to judge whether the intermediary organization personnel constitute the accomplice of the principal crime or constitute an independent crime.Personnel of intermediary organizations and other personnel commit joint crimes to obtain illegal benefits, which can be either explicit direct participation in the spoils sharing, or implicit receipt of seemingly legitimate rewards by providing false documents.For the former case, attention should be paid to collecting objective evidence such as bank statements, wechat and other online payment tools transfer records and subjective evidence such as the identification of co-perpetrators. Those who participate in the distribution of proceeds can be directly identified as accomplices of the main crime such as fraud.For the latter situation, when that is more complex, from the formal intermediary organizations for “routine is borrowed” gangs regularly provide notarial document service, charge the corresponding plausible legal notarization fees, but essentially it with “routine is borrowed” crime has a relatively fixed, long-term relations of cooperation, although not participate in the spoils, but the fact is hard to deny to gain profit, also can consider to the LordAccomplices in crimes are punished.But pay attention to the comprehensive considered in criminal proof, not only for notarial personnel frequent “routine is borrowed” gangs provide false documents, issued by the notary service is simple ZhuZui an accomplice, such as fraud needs to be combined with the testimony of witnesses, partners in crime of confession, such evidence, the defendant own arguments from the participation number, source of profit, known as degree is analyzed in many aspects, to determine whether the notary was part of a criminal gang or committed the crime alone.If the notarization business mainly comes from the relatively fixed “routine loan” criminal gang, and the members of the criminal gang are familiar with each other, obviously know that the victim is deceived, under coercion, still help to issue false documents, can consider directly identified as fraud and other crimes of accomplice, except for reasonable excuse.Starting from the dimension of proof of duty, it accurately defines whether the intermediary organization personnel commit intentional crime or negligent crime.In essence, the crime committed by intermediary organization personnel is a violation of objective, professional and due diligence duty, which can be divided into intentional crime and negligent crime due to different subjective malignant degree.Those who clearly know that the entrusted matters are inconsistent with the objective facts but still provide false certification documents for profit shall be punished for providing false certification documents;Those who are negligent in performing their duties, relax the requirements, and are irresponsible, thus producing proof documents of material untruth and causing serious consequences, shall be punished as the crime of producing proof documents of material untruth.Since the objective behaviors of the two crimes are similar, both of them are shown as issuing proof documents that do not conform to reality. The key point of difference lies in whether the subjective intention of the intermediary organization personnel is intentional or negligent. In practice, there is a phenomenon that the distinction degree is not accurate enough in the application of charges.Combined with the actual working situation, suggest starting from the following situation accurately prove that actor’s subjective state of mind, whose SINS are consistent guilt and punishment when there is objective evidence (1) fully prove that the mediation organization personnel material provided by the explicit knowledge is forged or altered, hereby issue the relevant documents, still be held to its department deliberately provides false documents, such as the obvious effect of the material fraud,It is impossible not to distinguish with professional common sense, providing false certification documents for the same object for many times, and without reasonable explanation;(2) If there is sufficient subjective evidence to prove that in the process of making certification documents, the intermediary organization personnel are aware of the contents of the dialogue and communication between the traders about the false transaction, or the false trader and the victim clearly testify that they are aware of the false transaction and have no reasonable excuse, it shall be regarded as intentionally providing false certification documents;(3) In addition to the first two cases, if there are doubts or contradictions in the documented evidence, and it cannot be ruled out that the intermediary organization personnel inadvertently issue the unsubstantiated proof documents without knowing it, it shall be deemed as the issuance of the proof documents as material unsubstantiated.(Author: The Second Branch of Shanghai People’s Procuratorate)