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Cell-phone fraud case
by May & Nancy
Key words &Expressions:
fraud crime 诈骗犯罪
fraud crime by using SMS 手机短信息诈骗犯罪
defraud sb of sth 诈骗某人某物
ICBC 中国工商银行 Bank clerk 银行职员
fraud offender 诈骗犯
bank deposit 银行存款
opening a bank account 开银行账户
the ownership of public or private money or property 公私财产所有权
Key words &Expressions:
conclusion of judicial evaluation 司法鉴定结论
in subjectivity 主观上
capacity for criminal liability刑事责任能力
Withdraw a confession 翻供
Invisibility 隐蔽性
Fraudulence 欺诈性
Gang 犯罪团体,集团
money laundering 洗钱
Key words &Expressions:
The Registration of Prepaid Mobile Phone Users
手机实名制
coercive measure 强制性措施
Junk message 垃圾信息
feasibility of the project 项目的可行性
mobile carriers 移动营运商
Information Filtering 短信息过滤
Parties:
The accused:
Wang Wenbin
(Age 23, out of work, from Hunan Province, live in Guangzhou)
VS.
The prosecutor:
The People's Procuratorate of Western Town District of Beijing
Facts
Early in September 2005,the accused WangWenbin was told by Wang Yong and Wang Tao, many people in their country were making money by defrauding through Mobile Messages. After a few days, they decided to commit fraud together by using SMS.
They first set a message in the mobile phone:" Dear client, your ICBC card has been used to consume several thousand RMB in the xxx Supermarket, which has been confirmed. Provided any question, please dial this number of the head office of ICBC."
Facts
they sent several thousand messages every day by the group-sending machine.
Asked the man to follow his well-designed procedures and after that the victim's money would all be transferred to his account.
On the morning of Sep.28, Wang Wenbin received a counseling call from one of the victims. Wang Wenbin told him: "This is the clerk of ICBC No.168, your bank card has been used, for prevention of further damage to your property, please come to the nearest ATM and do what as I say."
By doing this Wang Wenbin defrauded 7 victims of 845,000 RMB In 7 days.
Analysis
Issue:
Whether the accused had carried out the conduct of fraud and committed the crime of fraud.
Sub-issue:
Whether there is sufficient evidence to prove that the accused has committed all the 7 fraud cases.
Opinions of two parties:
Main-Issue
Whether the accused had carried out the conduct of fraud and committed the crime of fraud.
Opinions of two parties:
never involved in the 7 cases;
no messages or callings to victims, no idea about what Wang Yong and other accomplices were doing.
just helped Wang Yong to fill in a table to open a bank account.
I am wronged.
Accused Wang and his accomplices pretended to be bank clerk in order to defraud for 7 times
The accused-
Wang Wenbin
The prosecutor
The prosecutor
the fraud methods of the 7 cases are the same
lots of exhibits, the search record, conclusion of judicial evaluation and so on.
the testimony of the seven victims
proves that Wang Wenbin has withdrawn a confession in the court.
the confession made by Wang Wenbin on Oct.10, 2005
Proves:
Evidence presented:
The four elements of constituting
a crime of fraud
1 the object infringed upon: the ownership of public or private money or property
defraud 7 victims out of 845,000 RMB
2 objective element: means of fraud.
In objectivity Wang Wenbin pretended to be bank clerk and induced the victims to operate on the ATM
The four elements of constituting
a crime of fraud
Subject capacity
Wang Wenbin is an adult with capacity for criminal liability
4. Subjective element: the direct intention to defraud
Wang Wenbin made false ID cards, opened accounts in bank and deceived the victims into transferring their deposits to those accounts subjectively.
The intention is obvious.
Opinions of two parties:
Sub-Issue
Whether there is sufficient evidence to prove that the accused has committed all the 7 fraud cases.
Only admit the first case
The accused has committed all the 7 cases
Insufficient evidence to prove that Wang Wenbin was giving the instructions when the victims were operating on the ATM.
Wang Wenbin was caught having 3 mobile phones in his hand.
not constitute the fact that Wang Wenbin objectively has cheating behavior.
3 mobile phones, some false ID card, some mobile phone chargers and several bank cards were found in W's house
The lawyer
of the accused
The prosecutor
Applicable law
the Criminal Law of the People's Republic of China 《中华人民共和国刑法》
Article 266 Whoever swindles public or private money or property, …… if the amount is especially huge, or if there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and shall also be fined or be sentenced to confiscation of property, except as otherwise specifically provided in this Law.
(诈骗公私财物,数额特别巨大或者有其他特别严重情节的,处十年以上有期徒刑或者无期徒刑,并处罚金或者没收财产.本法另有规定的,依照规定.)
Application of law
The Explanation of Supreme People's Court on Application of Law to Fraud Crimes 最高人民法院关于审理诈骗案件具体应用法律的若干问题的解释
Public or private money or property swindled by individuals at the amount of more than 200,000RMB falls within especially huge amount. …… 个人诈骗公私财物20万元以上的,属于诈骗数额特别巨大. ……
Conclusion
The judgment has not come out yet.
Our opinion:
Based on the evidence, the accused shall be sentenced to a fixed-term imprisonment of not less than 10 years and also to a confiscation of property in accordance with the law.
Conclusion
Mobile Phones: a New Tool to Commit Crimes
Characteristics of the fraud cases by using SMS: invisibility, fraudulence, low cost but high income, the broad areas involved , the gang nature of the fraud offender, the difficulty for crime-fighting
They would send messages at city A, and make phone calls at city B, draw money at city C, the form is as complex as the money laundering. Moreover after each time cheat successfully the fraud offenders would again change their phone number, therefore it's very difficult to trace.
Suggestions
1. the Registration of Prepaid Mobile Phone Users 手机实名制
2. Construction of the Legal Supervision System of SMS Information Filtering
短信息过滤的法律监督体系构建
Using Real Name for Mobile
手机实名,势在必行
To effectively regulate fraud SMS and Junk Messages, Lawmaking Should Go First
the Registration of Prepaid Mobile Phone Users
a coercive measure to regulate the telecommunications market.
an important means to deal with mobile phone crime
Using Real Name for Mobile
feasibility of the project
Precedent in the foreign countries
South Korea, Thailand, Australia, Japan, the United States, South Africa, a number of countries, have practiced the real-name system for mobile phones, and already carried out a strict implementation of the relevant regulations and rules.
Using Real Name for Mobile
手机实名,势在必行
The opinion of the citizens and mobile carriers
According to the survey, more than 80% of citizens in Beijing support the implementation of the real-name system for mobile phone.
However, the Registration of Prepaid Mobile Phone Users makes mobile carriers hesitate between "Revenue" and "Responsibility"
手机实名制:让运营商在"收入利润"和"社会责任"间彷徨
Suggestion
2. Construction of the Legal Supervision System of SMS Information Filtering
短信息过滤的法律监督体系构建
The network information filtering is always a matter in dispute, but the gravity of the information pollution, forces many countries to carry out some relevant laws and regulations to control the harmful information.
The end!
Thank you for joining us!
by May & Nancy
Key words &Expressions:
fraud crime 诈骗犯罪
fraud crime by using SMS 手机短信息诈骗犯罪
defraud sb of sth 诈骗某人某物
ICBC 中国工商银行 Bank clerk 银行职员
fraud offender 诈骗犯
bank deposit 银行存款
opening a bank account 开银行账户
the ownership of public or private money or property 公私财产所有权
Key words &Expressions:
conclusion of judicial evaluation 司法鉴定结论
in subjectivity 主观上
capacity for criminal liability刑事责任能力
Withdraw a confession 翻供
Invisibility 隐蔽性
Fraudulence 欺诈性
Gang 犯罪团体,集团
money laundering 洗钱
Key words &Expressions:
The Registration of Prepaid Mobile Phone Users
手机实名制
coercive measure 强制性措施
Junk message 垃圾信息
feasibility of the project 项目的可行性
mobile carriers 移动营运商
Information Filtering 短信息过滤
Parties:
The accused:
Wang Wenbin
(Age 23, out of work, from Hunan Province, live in Guangzhou)
VS.
The prosecutor:
The People's Procuratorate of Western Town District of Beijing
Facts
Early in September 2005,the accused WangWenbin was told by Wang Yong and Wang Tao, many people in their country were making money by defrauding through Mobile Messages. After a few days, they decided to commit fraud together by using SMS.
They first set a message in the mobile phone:" Dear client, your ICBC card has been used to consume several thousand RMB in the xxx Supermarket, which has been confirmed. Provided any question, please dial this number of the head office of ICBC."
Facts
they sent several thousand messages every day by the group-sending machine.
Asked the man to follow his well-designed procedures and after that the victim's money would all be transferred to his account.
On the morning of Sep.28, Wang Wenbin received a counseling call from one of the victims. Wang Wenbin told him: "This is the clerk of ICBC No.168, your bank card has been used, for prevention of further damage to your property, please come to the nearest ATM and do what as I say."
By doing this Wang Wenbin defrauded 7 victims of 845,000 RMB In 7 days.
Analysis
Issue:
Whether the accused had carried out the conduct of fraud and committed the crime of fraud.
Sub-issue:
Whether there is sufficient evidence to prove that the accused has committed all the 7 fraud cases.
Opinions of two parties:
Main-Issue
Whether the accused had carried out the conduct of fraud and committed the crime of fraud.
Opinions of two parties:
never involved in the 7 cases;
no messages or callings to victims, no idea about what Wang Yong and other accomplices were doing.
just helped Wang Yong to fill in a table to open a bank account.
I am wronged.
Accused Wang and his accomplices pretended to be bank clerk in order to defraud for 7 times
The accused-
Wang Wenbin
The prosecutor
The prosecutor
the fraud methods of the 7 cases are the same
lots of exhibits, the search record, conclusion of judicial evaluation and so on.
the testimony of the seven victims
proves that Wang Wenbin has withdrawn a confession in the court.
the confession made by Wang Wenbin on Oct.10, 2005
Proves:
Evidence presented:
The four elements of constituting
a crime of fraud
1 the object infringed upon: the ownership of public or private money or property
defraud 7 victims out of 845,000 RMB
2 objective element: means of fraud.
In objectivity Wang Wenbin pretended to be bank clerk and induced the victims to operate on the ATM
The four elements of constituting
a crime of fraud
Subject capacity
Wang Wenbin is an adult with capacity for criminal liability
4. Subjective element: the direct intention to defraud
Wang Wenbin made false ID cards, opened accounts in bank and deceived the victims into transferring their deposits to those accounts subjectively.
The intention is obvious.
Opinions of two parties:
Sub-Issue
Whether there is sufficient evidence to prove that the accused has committed all the 7 fraud cases.
Only admit the first case
The accused has committed all the 7 cases
Insufficient evidence to prove that Wang Wenbin was giving the instructions when the victims were operating on the ATM.
Wang Wenbin was caught having 3 mobile phones in his hand.
not constitute the fact that Wang Wenbin objectively has cheating behavior.
3 mobile phones, some false ID card, some mobile phone chargers and several bank cards were found in W's house
The lawyer
of the accused
The prosecutor
Applicable law
the Criminal Law of the People's Republic of China 《中华人民共和国刑法》
Article 266 Whoever swindles public or private money or property, …… if the amount is especially huge, or if there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and shall also be fined or be sentenced to confiscation of property, except as otherwise specifically provided in this Law.
(诈骗公私财物,数额特别巨大或者有其他特别严重情节的,处十年以上有期徒刑或者无期徒刑,并处罚金或者没收财产.本法另有规定的,依照规定.)
Application of law
The Explanation of Supreme People's Court on Application of Law to Fraud Crimes 最高人民法院关于审理诈骗案件具体应用法律的若干问题的解释
Public or private money or property swindled by individuals at the amount of more than 200,000RMB falls within especially huge amount. …… 个人诈骗公私财物20万元以上的,属于诈骗数额特别巨大. ……
Conclusion
The judgment has not come out yet.
Our opinion:
Based on the evidence, the accused shall be sentenced to a fixed-term imprisonment of not less than 10 years and also to a confiscation of property in accordance with the law.
Conclusion
Mobile Phones: a New Tool to Commit Crimes
Characteristics of the fraud cases by using SMS: invisibility, fraudulence, low cost but high income, the broad areas involved , the gang nature of the fraud offender, the difficulty for crime-fighting
They would send messages at city A, and make phone calls at city B, draw money at city C, the form is as complex as the money laundering. Moreover after each time cheat successfully the fraud offenders would again change their phone number, therefore it's very difficult to trace.
Suggestions
1. the Registration of Prepaid Mobile Phone Users 手机实名制
2. Construction of the Legal Supervision System of SMS Information Filtering
短信息过滤的法律监督体系构建
Using Real Name for Mobile
手机实名,势在必行
To effectively regulate fraud SMS and Junk Messages, Lawmaking Should Go First
the Registration of Prepaid Mobile Phone Users
a coercive measure to regulate the telecommunications market.
an important means to deal with mobile phone crime
Using Real Name for Mobile
feasibility of the project
Precedent in the foreign countries
South Korea, Thailand, Australia, Japan, the United States, South Africa, a number of countries, have practiced the real-name system for mobile phones, and already carried out a strict implementation of the relevant regulations and rules.
Using Real Name for Mobile
手机实名,势在必行
The opinion of the citizens and mobile carriers
According to the survey, more than 80% of citizens in Beijing support the implementation of the real-name system for mobile phone.
However, the Registration of Prepaid Mobile Phone Users makes mobile carriers hesitate between "Revenue" and "Responsibility"
手机实名制:让运营商在"收入利润"和"社会责任"间彷徨
Suggestion
2. Construction of the Legal Supervision System of SMS Information Filtering
短信息过滤的法律监督体系构建
The network information filtering is always a matter in dispute, but the gravity of the information pollution, forces many countries to carry out some relevant laws and regulations to control the harmful information.
The end!
Thank you for joining us!
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