From a suggested four years to a sentence of one and a half years: A successful battle over charges. Article by: Shao Shiwei and Duan Zeyu. In cases involving “money laundering” and “inflating transaction volume,” the determination of the charge often directly determines a person’s fate. Among them, the crime of assisting in cybercrime activities (帮信罪) carries a maximum sentence of 3 years, while the crime of concealing or covering up criminal proceeds (掩隐罪) carries a maximum sentence of 7 years. A difference of a few words can double the sentence. In judicial practice, the determination of these two charges is precisely one of the areas with the most disputes and the most room for defense.

Real case: From “extra money” to criminal detention. Xiao Zhang was a construction site worker who learned from his co-worker Xiao Wang that there was “extra money” to be made, earning him 1500.00 元 a day.

He was not clear on what to do, but followed Xiao Wang’s instructions: register for an APP, bind multiple bank cards under his name, transfer the large amount of funds transferred into the bank cards to the APP, then withdraw it to other bank cards, and finally the funds flowed to multiple unknown accounts. This is a typical “money laundering” model.

Two weeks later, Xiao Zhang was summoned by the public security authorities and subsequently criminally detained for the crime of concealing or covering up criminal proceeds. The turnover of his account reached hundreds of thousands of yuan, and the sentencing recommendation proposed by the procuratorate was imprisonment for four to five years. For an ordinary worker, this is almost a devastating blow.

Breakthrough in defense: Rewriting from “serious crime logic” to “minor crime logic.” After we took over the case, we did not dwell on the conventional idea of “leniency and mitigation,” but directly adjusted the direction of defense: the core goal was to change the charge, arguing that Xiao Zhang’s behavior should be identified as the crime of assisting in cybercrime activities (帮信罪), rather than the crime of concealing or covering up criminal proceeds (掩隐罪).

(1) Key point of contention 1: Did the person concerned “know” about the upstream crime? This is the essential difference between the two crimes. We focused on arguing that Xiao Zhang was only involved in “earning extra money,” did not know what the upstream crime was, did not know the specific situation of the victims, and did not participate in the division of labor, rhetoric, or contact links of the fraud. Subjectively, he did not realize that “the money was proceeds of crime,” but only remained at the vague level of awareness that “it may not be normal,” which is more in line with the “cybercrime assistance awareness” in the crime of assisting in cybercrime activities (帮信罪), and does not reach the level of subjective knowledge of the crime of concealing or covering up criminal proceeds (掩隐罪).

(2) Key point of contention 2: Did the assistance behavior occur “before/during” or “after” the event? This is easily overlooked in judicial practice, but it is extremely critical. By sorting out the victim’s reporting time, the fraud occurrence node, and the fund transfer path, we pointed out that Xiao Zhang’s account was not simply a “money laundering terminal,” but a link in the fraud fund transfer chain, and the behavior occurred during the commission of the crime, which is more in line with the structural characteristics of the crime of assisting in cybercrime activities (帮信罪).

Final result: Successfully changed to a lighter sentence. The court finally adopted the defense’s opinion, convicted him of the crime of assisting in cybercrime activities (帮信罪), and sentenced him to one year and six months of imprisonment. Compared with the initial sentencing recommendation of 4-5 years, the sentence was directly reduced by one order of magnitude.

Why is it that “providing a bank card” leads to some people being convicted of the crime of assisting in cybercrime activities (帮信罪) and others being convicted of the crime of concealing or covering up criminal proceeds (掩隐罪)? Because the legal evaluation logic of the two crimes has changed.

The standard of the crime of assisting in cybercrime activities (帮信罪) is clear and the boundary is relatively clear. According to Article 287 bis of the Criminal Law, it must reach “serious circumstances,” such as payment and settlement amount of more than 200,000.00 元, illegal income of more than 10,000.00 元, the number of accounts leased or sold reaching a certain scale, providing assistance to multiple objects, etc., which all belong to the “quantifiable judgment” minor crime system.

The crime of concealing or covering up criminal proceeds (掩隐罪) has cancelled the unified case filing standard. Since April 2021, after the judicial interpretation was revised, the crime of concealing or covering up criminal proceeds (掩隐罪) is no longer convicted based on a fixed amount, but is comprehensively judged in combination with the nature, circumstances, consequences, and social harm of the upstream crime. This means that once it is identified as the crime of concealing or covering up criminal proceeds (掩隐罪), the sentencing space will be more uncertain, and it may “follow the nature of the fraud case,” and the difficulty and risk of defense will be significantly higher.

Lawyer’s reminder: In this type of case, the earlier the intervention, the more critical it is. In cases involving “money laundering” and “inflating transaction volume,” the dispute often lies not only in whether there is objective participation in the flow of funds, but in how the judicial authorities determine the role positioning, degree of participation, and subjective cognition of the actor in the overall chain, and these factors are directly related to the nature of the behavior and the application of the charge.

A common situation in practice is that the person concerned does not have sufficient understanding of the legal risks of the behavior, and in the inquiry, they focus on the objective process and ignore the expression of the subjective state, which can easily lead to a simplified understanding of the subjective cognition. There are many links in the flow of funds and the time nodes are scattered. If the order and boundaries of participation are not sorted out in a timely manner, the individual’s behavior may be magnified in the overall structure. When the case is in the investigation stage, the presentation of facts and evidence has not yet been fixed. If there is a lack of legal professional intervention, the path of determining the nature of the behavior often tends to be singular earlier.

Therefore, the early intervention of a lawyer, through sorting out the flow of funds, behavior nodes, and related evidence, and distinguishing the subjective cognition at the legal level, is more conducive to forming a more accurate basis for identification before the characterization is solidified, and the handling of this stage often has an important impact on the direction of the case in practice.

Attorney Shao Shiwei, a master of law from East China University of Political Science and Law, obtained his lawyer’s license in 2018. Since starting his practice, Attorney Shao has focused on legal risk prevention and control and criminal defense in emerging crimes in the field of information networks, high-incidence crimes in the crypto space, crimes of duty by senior executives of enterprises, and financial crimes. In the field of litigation, Attorney Shao has handled more than 300 cases since starting his practice in 2018 and has rich practical experience.

[Mankun Blockchain Legal Services]