Translator：Wang Qiyu

Introduction:

Suspect Zhao operated a network technology company that provided a live streaming platform to lower-level agents for online live streaming business. They recruited Li as customer service and hired Chen and Liu as technical personnel. Despite knowing that the lower-level agents were using the platform for telecom network fraud, these individuals provided technical support, platform services, and payment settlement services to them.

The lower-level agents utilized the live streaming platform to engage in fraudulent activities. Using fabricated female broadcaster identities, they interacted with victims online through voice and video chats. They employed tactics such as arranging meetings, love confessions, and ambiguous conversations to lead victims into live streaming rooms. During the live streaming process, they used strategies like "banishing trolls," "anchor competitions," and "task completion" to deceive victims into recharging their accounts and sending virtual gifts, ultimately tricking victims into giving away their money.

Role Classification and Fraud Techniques:

(I) Role Classification

1. Platform: Owner, Business Development Personnel (liaising with guilds), Technical Staff (platform setup and maintenance), Customer Service (assisting business development and handling complaints)
2. Agents (commonly referred to as guilds): Owner, Anchors, Sales Representatives (mostly male)

(II) Fraud Techniques

1. False Identities: Male sales representatives impersonate female anchors using fictional names and backgrounds to connect with victims on social media platforms.
2. False Relationships: Actively deepen emotional connections with victims, establish fictitious romantic or ambiguous relationships, exploit victims' desires for further interactions, and promptly steer them into live streaming rooms. Female anchors collaborate through voice chats to solidify the victim's misconception.
3. False Pretexts: During live streaming, manipulate game outcomes and create fake task scenarios to entice victims into recharging accounts and purchasing virtual gifts.
4. Termination of Contact: Block victims, delete them from WeChat, or remove them from group chats if they refuse to recharge or send gifts.

Logic of Criminal Offense:

(I) Determining Criminal Boundary of Live Streaming Tips

The income of online anchors largely stems from viewer tips. To garner more tips, anchors strive to please viewers for increased rewards. What is the criminal threshold in this context?

The boundary rests on whether viewer tips, whether from recharging or gifting, are voluntary and not obtained through deception. If these actions are voluntary, the anchor's profits are legitimate. If they aren't truly voluntary but rather due to deception, it constitutes fraud.

For instance, in the above case:

1. Impersonating attractive female anchors, initially establishing trust online.
2. Building false relationships, deepening emotional connections, creating fictitious love affairs to lead victims into live streaming rooms.
3. Utilizing fabricated reasons during live streaming to induce victims to recharge and purchase gifts.

It's important to first establish that the agents under the platform constitute fraud. The main reasons are:

1. Intention of Unlawful Gain: The suspects intentionally seek victims for monetary gain, using fabricated relationships to manipulate rewards—essentially, aiming to deceive for financial benefit.
2. Falsehood and Concealment: Suspects fabricate facts and conceal the truth.
3. Victim Misconception: Victims believe that recharging and gifting will fulfill their desires.
4. Disposition of Property: Victims part with their property—recharging and gifting.
5. Causal Relationship: A direct link exists between the acts and the disposition of property.

(II) Establishing Fraud for Technical Personnel

Given the earlier establishment of the agents' fraudulence, the next step is to prove the platform's subjective awareness of this, thus constituting fraud. Subsequently, showing that platform employees were aware of this situation establishes their complicity in the fraud.

Subjective Knowing Determination:

According to Article 4 of the Supreme Court's "Opinions on Several Issues Concerning the Application of Law in the Handling of Criminal Cases Involving Telecommunications and Internet Fraud," joint crimes and subjective intent are established. The third subsection stipulates that if someone knows that another person is committing telecommunications and internet fraud and falls under certain circumstances, they shall be treated as joint offenders, except as otherwise provided by laws and judicial interpretations.

Subsection 5 states that providing technical support such as internet access, server hosting, network storage, communication transmission, or assisting with payment settlement qualifies.

The phrase "knows that another person is committing the crime" should be evaluated in conjunction with the defendant's cognitive abilities, past experiences, behavior frequency and methods, relationships with others, gains made, whether they've been punished for telecommunications and internet fraud, and whether they intentionally evaded investigation, etc., to comprehensively determine.

Understanding "Knowingly... Committing a Crime":

Determining shared guilt in fraud involves subjective elements. Based on specific circumstances, it can be categorized into three types:

1. "Explicitly Aware" with Direct Contact: The helper and the helped have clear pre-planned or ongoing contact, constituting typical shared criminal intent.
2. "Definitely Aware" without Direct Contact: Based on a significant probability of the other person's criminal action, facilitated through technical service, or if the helper's tools are primarily or predominantly used for illegal activities, "definite awareness" applies.
3. "Should Be Aware" without Direct Contact: Even if the helper isn't fully aware of the other's crime or the potential criminal use of their technical service, certain circumstances—like unusual server behavior, users employing false identities, regulatory notifications, user reports, abnormal charges, or intentional avoidance of oversight—allow for the presumption of "should be aware."

In practice, judicial authorities primarily use presumptions to determine whether technical personnel had "knowingly" participated, in order to establish the type of crime they committed. Factors to consider include:

1. Past Experience: Whether they had experience working on similar live streaming platforms, familiarity with the guild's operations (e.g., specific fraud methods), attention to or involvement in promotional activities by guild members during service, and knowledge of client control over the backend or related manipulation techniques.
2. Frequency and Methods of Action: The number of times they executed relevant actions, the duration, and their provision of technical services (e.g., whether they perform "kicking," banning, or keyword blocking in response to clients mentioning fraud, anchor scams, etc.).
3. Previous Punishments for Telecom Fraud: This includes administrative and criminal penalties. If, despite being informed by judicial authorities that the platform is suspected of fraud, they continued to disregard it, it should be presumed as "knowingly."
4. Intentional Evasion of Investigation: For instance, deleting backend data privately during the case, transferring servers abroad during service, erasing chat records on platforms like WeChat, QQ, Skype, or SMS, or using "virtual currency" to hide financial transactions.
5. Profit Situation: Whether fees charged to clients for live streaming software are excessively high, one-time payments, monthly fixed fees, or based on commission percentages.

In practice, judicial authorities, apart from considering the listed factors, also examine the defendant's statements and those of co-defendants. Consistency, stability, and logical coherence in the defendant's statements are assessed, along with the ability to corroborate testimonies among co-defendants. Additionally, evidence such as WeChat and QQ chat records, money flow and profit situations, work history, etc., are comprehensively evaluated to ascertain whether the defendant was "knowingly" involved or aware of others committing telecommunications and internet fraud, thereby determining whether the individual is an accomplice to the crime of telecommunications and internet fraud. If no objective evidence establishes "knowingly," the suspect should be charged with aiding information network criminal activities.

Defense Strategy:

For the defense of technical personnel, the main focus revolves around proving or disproving the element of "subjective knowledge," which is pivotal in determining guilt versus innocence and the nature of the offense. Consider the following aspects:

1. Whether the platform was self-built or outsourced; whether technical personnel were outsourced or full-time employees; involvement in key platform technologies (e.g., VIP accounts, kicking users, banning, muting, filtering); any history of public security freezing payment channels due to fraud.
2. Specific job responsibilities, interactions with or responsibilities for handling customer complaints, opening VIP accounts, kicking users, banning.
3. Previous work experiences, tenure, frequency of actions, and profit methods—fixed salary or commission-based.
4. Inclusion in relevant groups, especially those involving platform business development and guild operations, and whether discussions on fraudulent activities occurred in company groups.
5. Any involvement of law enforcement, particularly visits from public security authorities to investigate the company.
6. Live streaming schedules—whether during or after work hours—real-time online maintenance requirements.
7. Admissibility of evidence in the case—whether there is sufficient evidence to prove that the technical personnel were subjectively aware of the platform and guild's involvement in fraud.

The defense should aim to disprove or mitigate the factors contributing to the establishment of "knowingly," thus influencing the charges or verdict for the technical personnel.

Introduction to the Lawyer:

Wang Ren

Since commencing legal practice in 2012, Wang Ren has been dedicated to the study of criminal defense and criminal compliance. He has handled numerous criminal cases of various types and levels, including high-impact cases in Shanghai and even across the country. His expertise lies notably in the fields of financial crimes, commercial crimes, and intellectual property crimes, where he has accumulated extensive practical experience. He has participated in programs such as "Legal World" and "Baoshan Radio," where he provided analysis on trending legal issues like the "Nanchang Honggu Bay Event," "Scam Cases," and "Illegal Fundraising in P2P Internet Finance." Leveraging his comprehensive criminal practice experience, Wang Ren offers specialized legal services in criminal compliance, anti-fraud, and anti-commercial bribery for enterprises' operation and management. His unique and professional insights have allowed him to promptly mitigate criminal legal risks for project companies, earning clients' trust.

Wang Ren's notable cases include:

• Secured probation for the company Fuxi in the 2015 list of China's top ten typical food safety cases, involving production and sale of counterfeit products.
• Assisted in securing probation for Yang, a defendant in a major tax case under the supervision of the Ministry of Public Security.
• Assisted in securing non-custodial sentences for the copyright infringement and pirated movie cases in the "2.15 Series" under the supervision of the Ministry of Public Security.
• Handled Shanghai's first case involving the robbery of a public bus steering wheel.
• Successfully prevented prosecution in a case of unlawful absorption of public funds involving hundreds of millions of yuan.
• Assisted in the dismissal of a copyright infringement case involving a well-known global daily goods company.
• Secured an acquittal in a fraud case involving millions of yuan.
• Secured probation for a case of embezzlement involving several million yuan.
• Secured probation for a case involving fraud and infringement of citizens' personal information, involving tens of millions of yuan.
• Secured an acquittal in a case involving the operation of an illegal gambling establishment.
• Prevented prosecution in a case of illegal detention.
• Secured an acquittal in a case of intentional injury.
• Secured an acquittal in a case involving disturbing public order.
• Secured an acquittal in a case involving intentional injury, among others.

These achievements underscore Wang Ren's exceptional skills and proficiency in navigating complex criminal cases and his unwavering commitment to defending his clients' in