虚拟货币犯罪之帮信罪与掩隐罪的界分

文/田玉琼

Man/Tata Yujun

江苏省连云港市海州区人民检察院

People's Procuratorate of the Haizhou District, Lien Yunzhou City, Jiangsu Province

文/张梅娟

Man/Jan Mei

江苏省连云港市海州区人民检察院

People's Procuratorate of the Haizhou District, Lien Yunzhou City, Jiangsu Province

虚拟货币具有可匿名、追踪难、交易便捷等特点，为了方便资金清洗，不法分子转移非法所得资金的方式逐渐转向更为隐蔽的虚拟货币，虚拟货币洗钱与各类犯罪交织渗透。以虚拟货币帮助上游犯罪洗钱的行为人在帮助信息网络犯罪活动罪和掩饰隐瞒犯罪所得罪中定性存在界定不清的问题，类案不同判、量刑不均衡现象严重。对此，笔者结合具体案例，从主观明知、客观行为方面对使用虚拟货币帮助上游犯罪洗钱行为进行全面审查、综合分析，探讨区分帮信罪与掩隐罪的认定标准。

Virtual money has the characteristics of anonymity, difficulty in tracing, ease of dealing, etc. In order to facilitate money-laundering, the way in which illicitly acquired funds are transferred by outlaws is gradually shifting to a more hidden virtual currency, where virtual money-laundering is intertwined with various types of crime. Actors who help money-laundering of predicate offences with virtual currency are characterized in terms of the offence of facilitating information cybercrime and concealing the proceeds of crime as poorly defined, with a wide variety of convictions and uneven sentencing. In this context, I have taken into account specific cases for a comprehensive review and analysis of the use of virtual money to help money-laundering of predicate offences, in terms of subjective knowledge and objective behaviour, and for the purpose of exploring criteria for distinguishing between the offence of aiding and concealment.

案例一

Case one.

被告人王某按照上线（身份不明）指示收买银行账户提供给上线接受资金流入后，或取现存入或使用POS机刷卡至其持有控制的银行账号，按照约定扣除流水资金的5%作为报酬，将其余资金在“欧意”软件购买虚拟货币转给上线，共计使用银行卡转账50余万元，其中关联诈骗资金3万余元。

One of the accused, upon instructions from the line-on-line (unidentified) to buy a bank account to be made available to the line after the inflow of funds, or to take the existing entry or use of POS machine brush cards to the bank account in which he holds control, deduct 5 per cent of the flow of water funds as per the agreement and transfer the remaining funds to the line in the “EUI” purchase virtual currency, using the bank card to transfer a total of more than $500,000, of which more than $30,000 is associated with fraudulent funds.

分析

Analysis

该案被告人王某系被侦查机关以帮助信息网络犯罪活动罪采取刑事强制措施，检察机关以掩饰隐瞒犯罪所得罪提起公诉，但是法院判决改变定性为帮助信息网络犯罪活动罪，法院判决认为：信息网络犯罪呈链条式发展，被告人的犯罪行为属于信息网络犯罪链条中的类型化行为，该行为与信息网络犯罪行为交织，被告人按照上线指示通过收买他人银行卡账户，配合上游信息网络犯罪资金流入流出。被告人的犯罪行为贯穿于信息网络犯罪预备、被害人对财产失控及实施信息网络犯罪行为人对财产实控的各个环节，为信息网络犯罪提供必要的条件，属于为他人利用信息网络实施犯罪提供支付结算的帮助行为，并非对信息网络犯罪所得或收益的事后掩饰、隐瞒，故应以帮助信息网络犯罪活动罪追究刑事责任。

One of the defendants in this case, Wang, who was the subject of a criminal coercive measure by the investigating authority to assist in the crime of information cybercrime, was prosecuted by the prosecution authorities for concealing the proceeds of crime, but the court ruled that the crime of information cybercrime had been reclassified as an activity of information cybercrime. The court ruled that the criminal act of the accused was a chained development, that the criminal act of the accused was a typographical act in the information cybercrime chain, that the criminal act was interwoven with the criminal act of the information network and that the defendant, by purchasing a bank card account of another person, cooperated with the flow of funds from upstream information cybercrime. The criminal act of the accused was committed through the preparation of information cybercrime, the victim's uncontrolled control of property and the perpetrator of information cybercrime, that the necessary conditions were provided for information cybercrime, that it was an act of assisting others in the payment of a settlement for the commission of an information network offence, and that it was not an act of concealment or concealment of the proceeds or proceeds of the information network, and that it should therefore be held criminally responsible for assisting in the crime of information cybercrime.

案例二

Case II

被告人廖某在明知上线（身份不明）利用信息网络实施犯罪的情况下，仍提供自己银行卡用于接收犯罪所得资金，并按上线指示将银行账户内接收的资金以购买虚拟货币的方式转移至上线指定账户，双方约定每转移人民币10000元收取人民币30元的好处费，共计提供银行流转资金85万余元，其中关联诈骗资金22万余元。

The accused Liao, knowing that he had committed a crime using an information network, provided his own bank card for the purpose of receiving proceeds of crime and transferred the funds received in the bank account by means of the purchase of a virtual currency to the front-line designated account in accordance with the on-line instructions. The parties agreed to charge a profit of RMB 30 for each transfer of RMB 10,000, for a total amount of RMB 850,000 in bank transfers, of which more than RMB 220,000 were linked to fraudulent funds.

分析

Analysis

该案被告人廖某同样系被侦查机关以帮助信息网络犯罪活动罪采取刑事强制措施，但是检察机关、法院均认定为掩饰隐瞒犯罪所得罪。对比第一个案例，客观犯罪行为基本一致，在主观故意方面，案例一未充分描述明知内容，案例二强调了被告人明知“上线利用信息网络实施犯罪”“接收犯罪所得资金”。实务中对于上述明知认定，主要结合行为人主观认识以及客观异常情形推定等等，但是根据主观见之于客观判断，案例二中的获利模式远低于案例一，甚至尚在虚拟货币本身交易的差额之中，反而具备更多的辩解空间。

One of the defendants in this case, who was also the subject of a criminal coercive measure by the investigating authority for the purpose of facilitating the activities of information cybercrime, was found by the prosecution authorities and the courts to be a cover-up of the crime of concealment of proceeds of crime. In the first case, the objective criminal act was generally consistent, and in the first case, where knowledge was not adequately described in terms of subjective intent, case II highlighted the fact that the accused had “received the proceeds of crime” knowing that “the information network was being used online to commit the crime.” In practice, the above-mentioned knowledge was largely linked to the subjective knowledge of the perpetrator and to the presumption of objective anomalies, but based on subjectively speaking, the profit pattern in case II was much lower than in the first case and was still within the margin of the virtual currency itself, but had more scope to justify.

案例三

Case III

被告人邓某作为一名虚拟货币交易商，在被公安机关告知用于虚拟货币交易的银行卡关联诈骗资金被冻结后，即明知交易方购买虚拟货币的资金来路不正仍进行出售，涉案银行交易记录达257万余元，其中关联诈骗资金16万余元。

As a virtual money dealer, the defendant, Deng, after having been informed by the public security authorities that fraudulent funds associated with bank cards used for virtual currency transactions had been frozen, was aware that funds purchased in virtual currency were being sold, and that the bank transaction in question had a record of over $2.57 million, of which over $160,000 related to fraudulent funds.

分析

Analysis

对比前两个案件，主观方面，被告人邓某本身从事虚拟货币的投资交易，虽然是非法金融活动，但是不足以直接推定违法犯罪，后其明知内容介入了司法机关的告知，可以推定；客观方面，被告人邓某只是出售虚拟货币接收进账，并没有再次购买虚拟货币支付给上线。一种观点认为，邓某在被司法机关告知用于接收虚拟货币货款的银行账户有电信诈骗的钱，主观上也明知虚拟货币买家资金可能来路不正，客观上仍为了赚取手续出售虚拟货币，实现了犯罪所得资金性质的掩饰和转移，客观上其进账流水关联诈骗资金16万余元，应当认定为掩饰隐瞒犯罪所得罪。一种观点认为，邓某前期从事虚拟货币业务，后明知国家禁止虚拟货币交易，其间银行卡也被冻结、风控，意识到虚拟货币买卖资金可能涉嫌诈骗钱款，仍放任继续交易，但是其主观上并非基于掩饰隐瞒赃款的故意，行为有别于专门为了掩饰赃款性质而帮助虚拟货币形式转移情形，更多的是对于本人交易的虚拟货币作为网络犯罪支付结算一环节的放任故意。结合邓某明知虚拟货币交易市场存在使用违法犯罪资金进行虚拟货币买卖的情况下，仍变相以虚拟货币买卖形式促成上游犯罪资金的支付结算，应当认定为帮助信息网络犯罪活动罪。笔者同意第二种观点。

In contrast to the first two cases, where the defendant, Deng, himself, engaged in an investment transaction in a virtual currency, although illegal financial activity, was not sufficient to create a direct presumption of a criminal offence, he was aware of the content of which he had intervened with the judicial authorities and could be presumed; on the objective side, the defendant, Deng, who simply sold the virtual currency for the receipt of accounts, did not buy again the virtual currency for payment to the line. One view was that he had been informed by the judiciary that the bank account used to receive the virtual money had money from telecommunication fraud, and that he was aware that virtual money buyers might be suspected of fraudulent money, and that they were still allowed to continue trading objectively for the purpose of selling the virtual currency, and that his actions should not be based on the purpose of concealing the value of the money, but should be distinguished from those that helped to conceal the nature of the proceeds.

综合分析

Comprehensive analysis

（一）主观方面

(i) The subjective aspect

帮信罪的主观明知范围显然广于掩隐罪，而“明知他人利用信息网络实施犯罪”和“明知犯罪所得”之间往往依赖于当事人的概括性、可能性认识，最后以进账资金的犯罪性质作为犯罪后果推定强化主观明知。针对案例一和案例二类案不同判情形，对比案例三，笔者认为涉虚拟货币洗钱的主观明知问题，需要从三个方面予以回应。一是买卖虚拟货币动机是“炒币”投资还是以虚拟货币作为媒介漂洗进账资金；二是是否知道他人从事犯罪活动，虚拟货币买卖系协助转换或者转移财物；三是是否收取没有正当理由的“手续费”。在案例一和案例二中，行为人先接收犯罪资金再帮助购买虚拟货币转移给上线，按照进账资金流水领取“手续费”，明显违背正常虚拟货币投资交易流程，根据《最高人民法院关于审理洗钱等刑事案件具体应用法律若干问题的解释》中的“明知”推定归责，可以推定具备掩饰、隐瞒犯罪所得的主观明知。

The subjective knowledge of the offence of aiding and abetting is clearly broader than that of concealing the crime, while the “knowing that another person has used the information network to commit the crime” and “knowing that the proceeds of crime” often rely on the generality of the person concerned, knowledge of the possibility of committing the crime” and, lastly, a presumption of the criminal consequences of entering the funds as reinforcing the subjective knowledge. For cases I and II, in contrast to cases III, where the authors believe that the subjective knowledge of money laundering involving virtual money needs to be responded to in three ways. First, the buying and selling of a virtual currency is motivated by an investment in “promotion” or by a virtual currency as a medium to launder funds; second, the knowledge of a person engaged in a criminal activity, the virtual money buying and selling system facilitates the conversion or transfer of property; and third, the imposition of an unwarranted “prosecution fee” in cases I and II, where the perpetrator first receives the criminal money and then facilitates the purchase of the virtual money to the line, and the receipt of a “prosecution fee” in accordance with the normal process of a virtual money investment, based on the interpretation by the Supreme People's Court of several questions on the application of specific criminal cases of the law, such as money.

（二）客观方面

(ii) Objective aspects

涉洗钱案件，帮信罪的客观行为主要表现在“支付结算帮助”，掩隐罪需要有“窝藏、转移、收购、代为销售或者以其他方法掩饰、隐瞒”等行为。对于实施银行卡并转账、取现或刷脸等结转行为的认定，实务中一般认为单纯提供银行卡的构成帮信罪，后续实施转账、取现等行为则构成掩饰隐瞒犯罪所得罪，对于虚拟货币洗钱案件的定性也有参照意义。案例三中，行为人从事虚拟货币投资交易赚取差价，主观能够认识到卖家支付的货款可能系犯罪资金，为了牟利仍将虚拟货币作为商品待售，实质上只是将虚拟货币作为上游犯罪资金结转的一道媒介，并没有再次协助转移犯罪资金行为，不应认定为“掩饰、隐瞒”犯罪所得。

In cases involving money-laundering, the objective conduct of the offence of aiding and abetting is mainly in the form of “payment settlement assistance”, which requires “concealment, transfer, acquisition, surrogate sale or other means of concealing and concealing” the offence. In the case of carrying over the carrying out of bank cards and the transfer of funds, cash withdrawal or face-washing, the mere provision of bank cards is generally considered to constitute a conspiracy offence, the subsequent transfer of funds, taking of cash, etc. constitutes a cover-up offence, and the characterization of the case of virtual money-laundering is also relevant. In case III, the perpetrator engaged in a virtual currency investment transaction to earn a price difference, subjectively recognized that the goods paid by the seller may be criminal funds and that, in order to profit, the virtual currency is still to be sold as a commodity, essentially merely as a medium for the transfer of funds from the predicate offence, without again assisting in the transfer of criminal funds and should not be regarded as “conceiting or concealing” the proceeds of crime.

（三）罪名适用之罪刑均衡原则

(iii) Principle of balance of penalties for offences to which the offence applies

由于虚拟货币涉洗钱隐蔽，犯罪时间较单纯银行卡犯罪长，大多情况下犯罪金额超10万元，如果认定为构成掩隐罪量刑均在3年以上，而帮信罪只有一档3年以下刑期。对比案例一和案例三，前者客观方面既有提供银行卡、又有帮助购买虚拟货币协助转移资金的行为表现，后者仅是出售虚拟货币接收犯罪资金，而且通常是独立犯罪行为，面向不特定的网络买家，无法作主从犯区分。前者距离正犯越近危害性越大，后者相对危害性小，如果后者被评价为重罪，前者评价为轻罪，明显有违量刑均衡原则。简言之，结合主观认知、客观表现行为以及考量具体的社会危害性，笔者认为案例一和案例二中行为人利用虚拟货币积极洗钱方式应当成立掩隐罪，案例三中从事非法金融活动的虚拟货币商被动参与洗钱行为应当认定为帮信罪。

Since the virtual currency is linked to money-laundering, the crime has been committed for a longer period than a simple bank card offence, which in most cases amounts to more than $100,000, if it is found to constitute a cover-up offence for more than three years, while the aiding and abetting offence has been sentenced for less than three years. In contrast to case I and case III, where the objective aspect of both the provision of a bank card and assistance in purchasing a virtual currency to facilitate the transfer of funds is demonstrated, the latter merely sells the virtual currency to receive criminal funds, and is usually a separate criminal offence, directed at a non-specific network buyer, the latter being less dangerous than the actual perpetrator, the latter being assessed as a minor offence and clearly contrary to the principle of balance of sentences. In short, in the context of subjective perceptions, objective behaviour and the consideration of specific social hazards, the authors of cases I and II consider that the use of the virtual money-laundering approach by the perpetrators of the case I and II should be treated as covertuous, and in the case III, the passive involvement of the financial dealer in illicit financial activity in the money-laundering should be considered to be regarded as an accomplice crime.