Translator：Xiong Yajie

 

On the afternoon of December 27, 2023, the 14th Joint Training Session for Criminal Practice of Ten Law Firms in Shanghai was successfully held at Tahota Shanghai Office. Guiping Pu, a senior partner of Landing Law Offices, actively participated in the event as a discussant and made an excellent speech.

This joint training session was jointly sponsored by Dacheng Shanghai Office, Hiways Law Firm, Shanghai Bohe&Hansen Law Firm, Shanghai Kindall Law Firm, SGLA Law Firm, Beijing Yingke (Shanghai) Law Firm, Beijing Dhhg (Shanghai) Law Firm, Landing Law Offices, and Tahota Shanghai Office. And hosted by Tahota, the theme of the joint training was "Crimes and Punishments of the illegal and unethical online activities". The participants introduced in detail the judicial viewpoints and defense strategies of such cases from four aspects: "modified software, code receiving platforms, traffic hijacking, and scoring platforms". More than 100 people participated in this joint training session.

 

First Half of the Event

Toastmaster

Zhijun Ma

Lawyer from Tahota Shanghai Office

Opening Remarks

Wencheng Xue

Executive Director from Tahota Shanghai Office

Director Wencheng Xue, representing all colleagues from Tahota, extended a warm welcome to everyone who attended the joint training session. He briefly introduced "Tahota" to the participants. Tahota Law Firm was established in 2000 and currently has 24 branches nationwide with over 3,300 practicing lawyers and more than 4,300 total employees. The Shanghai branch, established in 2015, currently has 14 professional departments, 90 practicing lawyers, and over 140 total employees. Director Wencheng Xu believes that China's illegal and unethical online activities have already reached a considerable scale, and the country is continuously taking strong measures to combat them. He believes that such cases will definitely become high-frequency cases in the present and future, and this joint training session focusing on this topic is very meaningful. He wished the event a complete success.

 

Crimes and Punishments of Modified Software

Presenter:

Huafeng Liu

 Director of Criminal Business Department, Tahota Shanghai Office

 

 

Firstly, Lawyer Huafeng Liu briefly introduced the meaning, application scenarios, market size, and proportion of modified software.

Secondly, Lawyer Huafeng Liu elaborated on the judicial views of the courts in Shanghai and Beijing on two similar cases, namely the "Xiaobai Modified Software Case" that he personally heard and the "Daniu Assistant Software Case" decided by a court in Beijing. Both courts share the view that the "destructive programs" mentioned in the third paragraph of Article 286 of the Criminal Law, which concerns the crime of damaging computer information systems, are essentially different from those in the technical sense. They cannot be directly considered as constituting the crime of damaging computer information systems solely because they are identified as "destructive programs" according to the "Operational Norms for the Inspection of Destructive Programs". After being technically identified as "destructive programs", further examination is needed. Only those programs that have the same nature and principles as computer viruses, with the purpose of destruction and causing comparable damage to that potentially caused by computer viruses, belong to the "destructive programs" in the sense of criminal law and thus constitute the crime of damaging computer information systems.

The difference lies in the interpretation of "the computer information system cannot operate normally" as stipulated in the first paragraph of Article 286 of the Criminal Law. The courts in Shanghai and Beijing have significant differences in this regard. The Shanghai court believes that the mere use of software to tamper with information such as phone serial numbers, resulting in other software receiving incorrect return information when retrieving relevant information, does not constitute a situation where "the computer information system cannot operate normally." However, the Beijing court holds that disruptive behaviors such as interference do not necessarily need to start from within the computer. When external forces are applied to interfere with others' computer information systems, causing the normal working state or transmitted data signals to not be received or output normally, it falls under the category of "the computer information system cannot operate normally."

Finally, Lawyer Huafeng Liu believes that the key to determining whether modified software constitutes a crime and which crime it constitutes lies in understanding its technical principles. Lawyers should seek advice from professionals in the defense process and make good use of the system of "experts appearing in court."

Speaker:

Ningning Tian

Partner of Shanghai Bohe&Hansen Law Firm

Lawyer Ningning Tian, believes that the software for modifying devices is a general term for applications that have functions such as holographic backup, modifying phone models, GPS positioning, etc. Because the software is often used for illegal and unethical online activities such as batch registration, fake brushing, group control and order snatching, and virtual location check-in, it is often deemed illegal. In the field of criminal law, the software is suspected of violating Article 285(3) of the Criminal Law, which stipulates the crime of providing programs and tools for intruding into or illegally controlling computer information systems.

However, it is worth discussing whether the software for modifying devices falls into the category of "programs and tools specifically used for intruding into or illegally controlling computer information systems" as required by the crime.

Whether the software for modifying devices can be recognized as a specific tool for the crime should be judged based on the user group and usage scenarios. For example, one of the main functions of the software is holographic backup. Users use it to backup the data on their phones. This behavior involves users operating on their own data stored on their phones and controlling their own mobile devices. It does not involve any other apps or third-party computer information systems, and there is no intrusion or illegal control of computer information systems. Furthermore, users can use the holographic backup function to log in to a new device without verification, which does not constitute "intrusion" into a third-party computer information system. The realization of this function is because the software can backup and transfer app cache data. User account login data and other information are stored on the user's device and belong to the user. The act of copying and transferring this data to a new device using the software still falls within the scope of the user's own data operations, and there is no situation of intrusion or illegal control of a third-party computer information system.

 

Speaker:

Ye Kang

Equity partner of Beijing Yingke (Shanghai) Law Firm,

Lawyer Ye Kang, put forward three viewpoints:

Firstly, the use of "modification software" is not necessarily a crime in itself. The specific circumstances depend on the purpose and way of using the software, as well as whether its use violates the law. In some cases, modification software may be considered a legitimate tool, especially when users employ it for lawful operations such as obtaining superuser privileges on their phones, installing customized ROMs, or making personalized modifications. Therefore, "modification software" is not inherently a criminal tool, just as drones can kill people but also save lives.

Secondly, when considering some scenarios involving the use of "modification software," we should first consider whether it constitutes a crime or not. Secondly, we should consider whether it falls under one crime or another. Thirdly, we should consider a specific type of computer crime. Additionally, we must also take into account the existence of any extraordinary circumstances that may justify or mitigate the illegality.

Thirdly, the applications of "modification software" include device modification, system modification, and simulated operations. When considering criminalization, factors such as illegal means and illegal purposes must be taken into account. If the use of "modification software" violates the law and reaches the criminal prosecution standard, such as infringing on intellectual property rights, computer systems, and other social order and property interests, it can be considered as a case of implicated offense and punished accordingly.

Speaker:

Yanpeng Jiao

Professor and Doctoral Supervisor, School of Criminal Law, East China University of Political Science and Law

After listing various scenarios that seem to constitute crimes against computer information systems but actually do not, or do not constitute the specific crime, Professor Yanpeng Jiao concluded that judging whether software for modifying devices constitutes a crime should still revert to the criminal law theory itself. Crimes against computer information systems should target the computer information system itself. Mere interference without damaging the computer information system, such as comparing and deceiving money or obtaining advantages based on the pre-established algorithms of the computer information system, does not constitute the crime. It cannot be considered a criminal act solely because of the existence of property losses or the gain of others' interests. The judgment should be made based on the principles of legality of crime and punishment, proportionality of crime and punishment, and supplemented by the principle of social equivalence for a comprehensive assessment. In practice, attention should be paid to the inappropriate expansion of the crime, and a substantive criminal law perspective and a substantive legal interest perspective should be adopted to interpret and apply the crime.

The Crime and Punishment of the Code-Receiving Platform

Presenter:
Peiwen Chen
Partner of Shanghai Kindall Law Firm

Firstly, Lawyer Peiwen Chen briefly introduced the three parties involved in the code-receiving platform, its operation process, and technical approach.

Secondly, Lawyer Peiwen Chen explained the criminal nature of the actions related to the code-receiving platform. On one hand, parties related to the real-name card code-receiving platform may constitute the crime of infringing on citizens' personal information. On the other hand, parties related to the non-real-name card code-receiving platform may be targeted by judicial authorities for the crime of illegally obtaining data from computer information systems or the crime of assisting in information network criminal activities.

Finally, Lawyer Peiwen Chen, combining his personal experience in handling cases, elaborated on the core defense points in cases involving the code-receiving platform. Firstly, when real-name card code-receiving is accused of infringing on citizens' personal information, the defender should pay attention to three points: one, a solely real-name phone number does not equal citizens' personal information; two, an account registered with a real-name phone number and verification code does not equal citizens' personal information; three, evidence of identifying real-name card is needed to confirm whether it belongs to citizens' personal information.

On the other hand, when non-real-name card code-receiving is accused of illegally obtaining data from computer information systems, the defender should pay attention to five points: first, the realization of the code-receiving platform's functions does not equal the intrusion into computer information systems. Verification codes are automatically and voluntarily sent by the target registration platform to users applying for registration based on pre-set programs, without violating the will of the target registration platform, let alone being an act of "illegal intrusion"; second, whether the bulk registration behavior of account sellers using automatic control software can be attributed to the platform and card sellers depends on whether the card sellers knew or should have known that the account sellers would use bulk registration for illegal activities, and whether the platform has taken appropriate measures to detect and prevent abusive behavior; third, verification codes are not equivalent to "data". Verification codes are temporarily and randomly generated, time-limited registration verification information, and do not have the specific information transmission function and stability of data; fourth, using the code-receiving platform to register an account is not equivalent to illegally obtaining identity authentication information. The account seller only receives the verification code from the registration platform from the beginning. Only after completing the registration process of filling in the "phone number + verification code", the corresponding phone number will be stored in the platform database, rather than obtaining the user's identity authentication information through the code-receiving platform; fifth, expert opinions are not equivalent to expert conclusions and need to be carefully reviewed, especially whether they are issued by unqualified expert institutions. When non-real-name card code-receiving platform is accused of assisting in information network criminal activities, attention should be paid to whether there are downstream crimes, whether the downstream crimes belong to information network crimes, and whether the downstream crimes have met the requirements of verification.

 

Speaker:
Guiping Pu
Partner of Landing Law Offices

Lawyer Guiping Pu believes that the crimes related to the code-receiving platform have three characteristics: first, strong technicality; second, geographical dispersion; and third, a large number of people involved. Given these three characteristics, the following two issues need to be considered during defense:

Firstly, the issue of joint crime. Typically, card merchants, account merchants, and platform operators engage in similar activities, which constitute joint crimes and should be treated as a single offense. However, if an account merchant commits a fraudulent act, amounting to the crime of fraud, would the card merchant and platform operator also constitute joint crime of fraud? In practice, judicial authorities handle such cases differently. Some treat it as a joint crime of fraud, some treat the card merchant and platform operator as accessories to information network criminal activities, and some treat the platform operator as guilty of illegal business operations. This deserves our attention.

Secondly, the provision of the but-clause in the criminal law. Such crimes involve a large number of people, especially for card merchants. Since there are many people involved with minor roles, it is worth considering whether to apply Article 13 of the criminal law, which states that if the circumstances are obviously minor and the social harm is insignificant, it does not constitute a crime.

In general, with the development of society, various new forms of cybercrimes will continue to emerge, while laws and judicial interpretations are relatively lagging behind. Therefore, there is still considerable room for defense in such criminal cases.

 

Speaker:

An Ning
Partner of Shanghai Allbright Law Offices

Lawyer Ning An believes that defense attorneys should not only focus on individual crimes related to computer-related fields but also be vigilant against being charged with joint crimes. The key to joint crimes lies in subjective knowledge, which is often determined through presumption, i.e., "ought to have known." This evidentiary standard is relatively low, and in some cases, there may only be vague confessions from the defendant. This is a difficult aspect of defending such cases and requires everyone's high attention.

 

Speaker：
Jingyun Ma
Party Secretary and Director of Hiways Law Firm

Lawyer Jingyun Ma believes that the topic chosen for today's joint training is excellent. Cybercrime related to the illegal and unethical online activities mostly involves emerging fields, but these are also areas where lawyers have weaknesses and require increased attention and research. In the early stages of internet-related crimes, defenders often put forward the argument of technological neutrality. However, cases such as Xin Wang's QvodPlayer case in China and Zuckerberg's congressional testimony abroad have shown that the defense concept of technological neutrality is no longer viable, not only in China but also abroad. This is related to changes in the way countries manage the internet. Initially, the state directly regulated internet content, but as internet platforms have grown larger, the focus has shifted to regulating the platforms themselves, while also requiring internet platforms to be responsible for regulating the content on their platforms. Therefore, providers of internet platforms have the obligation and ability to regulate the content on their platforms. Correspondingly, there has been a change in our defense approach. We should not focus on whether the technology is neutral but on examining whether internet platforms have fulfilled their regulatory responsibilities.

 

Second Half Activities

Toastmaster:
Haiying Wei
Partner of Tahota Shanghai Office

Crimes and Punishments Related to Traffic Hijacking

Presenter:
Jinliang Ge
Deputy Director of Criminal Business Department, Tahota Shanghai Office

Starting with the definition, principles, and classification of traffic hijacking, Mr. Jinliang Ge introduced in detail the behavioral patterns of traffic hijacking. He pointed out that traffic hijacking is achieved by targeting the characteristics of the traffic transmission process and altering the user's access results or modifying the user's access content. He believes that as a form of unfair competition, judicial practice often focuses on the manner of hijacking traffic and whether the result of traffic transfer is triggered by the user's initiative when evaluating traffic hijacking, to distinguish whether the specific act of hijacking traffic constitutes a criminal offense. Additionally, the purpose of competition is another crucial aspect in distinguishing between criminal and non-criminal behavior.

Taking into account the statutory nature of the offenses related to traffic hijacking, defense lawyers should also focus on the degree of infringement on legal interests caused by specific acts when defending innocence or misdemeanor against traffic hijacking. For traffic hijacking that is considered within the scope of criminal behavior, judicial authorities may evaluate it as crimes such as disrupting computer information systems, illegally controlling computer information systems, and assisting in information network criminal activities. Mr. Ge elaborated and analyzed the key points and focal points of evaluating traffic hijacking in relation to these offenses through different case examples, and believes that lawyers can actively defend from the perspective of charge selection based on the patterns and outcomes of specific acts during the defense process.

 

Speaker:
Wenlong Luo
Director of Zhiheng (Shanghai) Law Firm

Lawyer Wenlong Luo supplemented the content of Mr. Jinliang Ge's presentation. He first introduced the specific methods of "domain name hijacking," which is the most common form of traffic hijacking. Secondly, he combined the guiding cases No. 102, No. 145 of the Supreme People's Court and No. 33 of the Supreme People's Procuratorate to introduce the respective views of the two high-level judicial organs on related issues. Finally, he pointed out that in current judicial decisions, there are still instances of different verdicts for similar cases. Some courts may consider similar cases as crimes of disrupting computer information systems, while others may consider them as crimes of illegally controlling computer information systems. This provides us with defense space, and defense lawyers need to carefully study and actively defend their clients.

 

Speaker:
Yaohua Bai
Partner of Beijing Dhh (Shanghai) Law Firm

Lawyer Yaohua Bai discussed three issues related to traffic hijacking:

Firstly, where is the boundary between criminal and non-criminal behavior in traffic hijacking?
Currently, with the advancement of financial technology, this boundary has become increasingly blurred. Additionally, there is a noticeable trend towards treating criminal cases as minor offenses. Many cases of traffic hijacking are currently regulated and guided as civil and commercial disputes involving unfair competition. While this may not be entirely negative for the legal profession, it does increase the pressure on law enforcement agencies. If a case is entirely straightforward, there would be no room for defense, and consequently, less opportunity for criminal defense lawyers.

Secondly, how can defense lawyers find effective defense strategies in criminal cases involving traffic hijacking?
Cases of traffic hijacking differ from traditional moral and ethical offenses. They are more akin to statutory offenses. Therefore, both law enforcement agencies and defense lawyers are dealing with relatively new and unfamiliar cases. Traditional defense strategies, such as submitting purely textual and theoretical defense materials, may not be as effective in these cases. It is recommended to adopt innovative defense and communication methods, such as using charts and visualizations.

Thirdly, how can we strengthen the research on new types of criminal cases involving traffic hijacking, given that some existing guiding criminal cases on traffic hijacking are outdated?
Currently, cases such as No. 102 and No. 145 focus on webpage hijacking, which was primarily relevant during the PC era. However, such cases involving criminal liability are now rare due to the development of financial technology and the shift to the mobile internet era since 2010, especially now in the 5G era. If we continue to focus on webpage hijacking (including but not limited to http hijacking), we may always be lagging behind technological advancements and regulatory developments, making it difficult to formulate effective defense strategies. It is particularly noteworthy to pay attention to the ten typical cases related to the digital economy released by the Shanghai High People’s Court on December 18, 2023. One of these cases involves traffic hijacking through the use of identical redirection strategies on iOS devices. Given the trend towards treating such cases as minor or non-criminal offenses in practical applications, it is recommended to strengthen the research and analysis of guiding cases involving new types of traffic hijacking.

 

Speaker:
Hui Chen
Partner of SGLA Law Firm

Lawyer Hui Chen shared three main impressions: Firstly, criminal defense lawyers need to collaborate and strengthen their research efforts to increase social influence. The "Joint Training Session for Criminal Practice of Ten Law Firms in Shanghai" is an excellent format for this. For each joint training, the organizer will carefully select topics that are both novel and practical, and the participants will benefit a lot.For each joint training session, the organizer would carefully selects topics that are both novel and practical, benefiting all participants. Secondly, when defending in such new and novel cases, defense lawyers need to understand the technical principles before engaging in legal arguments. The best way to familiarize oneself with these technical principles is to use the technology personally. Often, after personal use, hidden defense points can be discovered. Thirdly, such new cases often involve multiple charges, and there are often disputes about which charge to apply. We need to take the initiative and dare to defend our clients.

 

 The Crimes and Punishments of Score-Running Platforms

Presenter:
Lei Guo
Partner of Tahota Shanghai Office

Lawyer Lei Guo discussed the "Crimes and Punishments of Score-Running Platforms" from three perspectives: the operating model of score-running platforms, judicial practice regarding score-running platforms, and a conclusion. Regarding the operating model of score-running platforms, Lawyer Lei Guo categorized them into traditional and new models. The traditional model is typically represented by the empty package delivery platform, while the new model focuses on daily life payment operations.

In the section on judicial practice, Lawyer Lei Guo provided a detailed overview of the relevant crimes and constituent elements involved in score-running platforms, the varying judicial decisions in similar cases, and defense strategies. He believes that in defending score-running platforms, priority should be given to using lighter charges, specifically the crime of assisting in information network criminal activities. However, the crimes associated with score-running platforms still fall within the scope of assisting upstream crimes. Finally, Lawyer Lei Guo shared the views of the relevant research team from the Shanghai First Intermediate People's Court on the crime of score-running platforms.

Speaker:
Jun Cheng

Deputy Director of the Criminal Business Committee of HiwaysLaw Firm

Lawyer Jun Cheng mainly raised the issue of the standard of proof. He believes that whether it is the crime of concealing criminal proceeds or the crime of assisting in information network criminal activities, the subjective knowledge is usually determined by presumption in judicial practice, and the standard of proof is relatively low. Therefore, defense lawyers should pay special attention to digging out evidence that can rebut the defendant's lack of knowledge.

Speaker:
Jianping Fu
Partner of Seven Dimension Law Firm

Lawyer Jianping Fu shared three viewpoints: Firstly, regarding the determination of the crime. Lawyer Jianping Fu believes that whether the "score runner" is considered a co-perpetrator of upstream crimes such as fraud or gambling, a co-perpetrator of downstream crimes of concealing criminal proceeds, or solely guilty of assisting in information network criminal activities, is closely related to the theory of co-perpetration in criminal law, the principle of subjective-objective consistency, and the theory of legal provision overlap. If these three theories are closely integrated during the determination of guilt, there should not be significant differences. Secondly, regarding the issue of similar cases receiving similar judgments. He believes that there are no two completely identical cases, and the facts and evidence of each case differ in detail. It is unrealistic to expect complete consistency in judgments for similar cases in judicial practice. Thirdly, regarding defense strategies. He believes that there is room for defense only when there is controversy. Defense lawyers should not fear receiving different judgments for similar cases. Besides reasoning with legal arguments, sometimes using viewpoints beyond the law for defense can achieve unexpected results.

Speaker:
Xiaoqiang Yu
Executive Director of Beijing Dhh (Shanghai) Law Firm

Lawyer Xiaoqiang Yu shared four viewpoints: Firstly, regarding the trend of minor crimes. The proportion of minor crimes in criminal cases is increasing, and both the practical and theoretical circles are currently focusing on this topic. Today's joint training session is very timely and necessary. Secondly, regarding score-running platforms. Both licensed third-party payment platforms and unlicensed fourth-party payment platforms are closely related to illegal and unethical online activities on the internet. The number of cases in this area is generally quite high, and the types of business involved are not limited to legal advisory work but also include dispute resolution. The scope of business is not limited to criminal law but also includes civil and commercial law, deserving everyone's attention. Thirdly, regarding defense strategies. The crime of assisting in information network criminal activities is the principalization of aiding and abetting other crimes. There is a possibility of being identified as an accomplice to other crimes. In defense, we should adopt a layered defense strategy. When conditions permit, we should prioritize pleading innocence, followed by pleading for a minor crime, and finally pleading for a lighter sentence. Fourthly, regarding the growth of lawyers. Young lawyers can choose to explore such new areas as their business development direction, conduct in-depth research, and strive to become legal experts in this field.

 

Event Summary

Speaker:
Yunfeng Wu
Professor and Doctoral Supervisor, School of Criminal Law, East China University of Political Science and Law

Professor Yunfeng Wu made three main points in his comments:

Firstly, regarding the "Joint Training Session for Criminal Practice of Ten Law Firms in Shanghai". Today marks the 14th event of the ""Joint Training Session for Criminal Practice of Ten Law Firms in Shanghai". Each event, the organizer, through careful topic selection, diligent organization, and lively discussions, has established a certain brand influence in Shanghai, deserving high praise.

Secondly, regarding this joint training. This training focused on the crimes and punishments related to the internet's illegal and unethical online activities, delving into difficult and novel issues in judicial practice from both a technical and legal perspective, seeking truth and being pragmatic. Sixteen speakers, discussants, and commentators provided detailed introductions on the defense of crimes in the illegal and unethical online activities from four aspects: modified software, code receiving platforms, traffic hijacking, and score-running platforms, demonstrating comprehensive and professional insights.

Thirdly, regarding the constitution of a crime. When judging crimes in the illegal and unethical online activities, three points need to be noted. Firstly, technology. It is important to understand the operating principles and what is actually being violated. Secondly, pre-existing laws. Many iillegal and unethical online activities violate pre-existing laws such as the Anti-Unfair Competition Law, the Electronic Commerce Law, the Cybersecurity Law, and the Data Security Law. We should consider using these laws for punishment before resorting to criminal law. Thirdly, the boundary between guilt and innocence. In controversial cases, we should adopt a restrictive interpretation, reflecting the modesty of criminal law.

Concluding Speaker:
Zongxin Xu
Director of Shanghai Kindall Law Firm

Firstly, Director Zongxin Xu congratulated the successful conclusion of this event, noting its novel topic selection and orderly organization.

Secondly, in addition to agreeing with the speakers' remarks at the joint training event, Director Zongxin Xu added three points: Firstly, regarding technological neutrality, he believes that it is currently difficult to persuade judicial authorities with technological neutrality, especially for criminal suspects, as raising technological neutrality can easily raise doubts about their motives in the eyes of judicial authorities. Secondly, on technical defense, he suggests that if one wants to defend from a technical perspective, it is necessary to conduct thorough research on the technology itself and strengthen contacts and exchanges with technical departments to create a product. Thirdly, on technical compliance, he maintains that only by understanding technology and engaging in professional exchanges with technical personnel can one obtain professional compliance business.

Lastly, Director Zongxin Xu put forward three requirements for the "Joint Training Session for Criminal Practice of Ten Law Firms in Shanghai": Firstly, the joint training activities should be held as scheduled; secondly, each event should have some innovations; and thirdly, participating guests should prepare meticulously.

Acknowledgement:

Acknowledger:
Bao Hai
Party Secretary of Tahota Shanghai Office
After sharing his thoughts on the entire event, Secretary Bao Hai expressed heartfelt gratitude to the esteemed criminal defense lawyers for their attendance and looked forward to welcoming them again to Tahota Shanghai Office.

The joint training event, which lasted for four hours, was attended by over 100 lawyers throughout the entire session and concluded successfully at 17:30 on the same day. Following the event, participating guests gathered for a dinner to further enhance mutual understanding and exchange ideas.