Comparative analysis of subjective signs of fraud using electronic means of payment in the criminal legislation of Russia and China
In the article, the author analyzes the subjective signs of fraud using electronic means of payment in Russia and China. An overview of the judicial practice of crimes in this area is provided.
Keywords: the subjective side of the crime, the subject of the crime, guilt, motive, purpose, fraud using electronic means of payment, the Criminal Code of the Russian Federation, the Criminal Code of China.
The analysis of the subjective signs of the corpus delicti makes it possible to identify the essential characteristics of a socially dangerous act related to the identity of the perpetrator, the motivation of his behavior, and the form of guilt. This seems to be important enough for the correct qualification of a crime, the imposition of a fair punishment, and the prevention of a person committing new crimes. In the modern period, the study of subjective signs of the composition of crimes is recognized as an important method of understanding the patterns of formation of the criminal's personality <1>.
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<1> Rarog A.I. Problems of qualification of crimes on subjective grounds: monograph. M.: Prospect, 2019. p. 8.
In the structure of the subjective signs of the corpus delicti, such as the subject of the crime and the subjective side of the crime are distinguished <2>. The legal characteristics of the general criteria defining the legal content of these concepts are fixed in Articles 19-22, 24-26 of the Criminal Code of the Russian Federation (hereinafter - the Criminal Code of the Russian Federation). For comparison, the Criminal Code of the People's Republic of China establishes the concepts of intentional and careless forms of guilt (Articles 14-15), the age of criminal responsibility (Article 17) and the conditions for recognizing a person not subject to criminal liability due to insanity (Article 18).
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<2> Garbatovich D.A. Qualification of criminal acts on the subjective side: monograph. M.: Yurlitinform, 2009. p. 5.
Guided by these norms, we investigate the subjective signs of fraud committed using electronic means of payment.
In accordance with Article 19 of the Criminal Code of the Russian Federation, the subject of a crime can only be a sane individual who has reached the age of criminal responsibility. It should be noted that the age of criminal liability for fraud committed using electronic money is 16 years. At the same time, as is known, the most dangerous forms of theft (theft, robbery, robbery) are punished from the age of 14. Similarly, Article 17 of the Criminal Code of the People's Republic of China establishes the general age of criminal responsibility (16 years), while allowing her to be prosecuted from the age of 14 for committing the most dangerous crimes. At the same time, about 33% of the crimes provided for in the Special Part of the Criminal Code of the People's Republic of China are of a corporate nature, i.e. they allow criminal liability of legal entities <3>. However, taking into account the methods of fraud committed using electronic means of payment, it can be concluded that this crime cannot be committed by a corporation, i.e. a company or organization conducting legal (permitted) activities. With the participation of several persons in such fraud, they act in complicity, forming a group of persons by prior agreement or an organized group.
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<3> Dongmei Pan. Corporate crime in Chinese criminal law // Lex Russica. 2015. N 7. pp. 61-70.
When defining the concept of the subject of a crime, scientists focus on the fact that this is not an abstract definition, but a characteristic of a specific person who committed criminal acts. Such a person enters into communication interaction with other people and has mandatory properties, the main of which are considered to be sanity and reaching a certain age.
As part of a fraud committed using electronic means of payment, the age of the subject of the crime is 16 years old. The typical public danger of a subject of special types of fraud is reasonably recognized as lower than a similar characteristic of persons committing other forms of theft <4>. At the same time, in Article 159.3 of the Criminal Code of the Russian Federation, the legislator established sentences that are quite comparable to the punishment for other nonviolent theft (in particular, for theft). Given the potentially large amount of damage that can be caused in the commission of this crime, this seems to be correct.
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<4> Borovkov A.A. Fraud in the field of entrepreneurial activity (parts 5-7 of Article 159 of the Criminal Code of the Russian Federation): problems of criminal law regulation and qualification: dis. ... cand. Jurid. sciences'. Krasnoyarsk, 2018. p. 9.
Persons who commit fraudulent acts have a special set of personality traits that allow them to use deception and abuse of trust <5>. Fraud using electronic means of payment also implies that the perpetrator has education in the field of using e-commerce resources or has skills in handling special technical devices designed for unauthorized access to electronic means of payment.
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<5> Karpovich O.G. Actual criminal and legal problems of combating financial fraud: monograph. M.: UNITY DANA, 2012. pp. 57-58.
In the studied criminal cases, 30% of the convicts were between the ages of 24 and 30, had secondary or higher technical education, as well as experience working with devices that allow remote access to information. But 70%, being in the same age group or being slightly older (30 - 40 years old), had a low level of education and used ordinary communication skills when committing a crime. At the same time, half of the convicts of the second group had previous criminal experience (criminal record for fraud), and in some cases the crime provided for by art. 159.3 of the Criminal Code of the Russian Federation, they committed while serving their sentence.
For example, a court verdict under Part 2 of Article 159.3 of the Criminal Code convicted a citizen who, while in a penal colony and serving a sentence of imprisonment, made the following attempt at illegal enrichment. With the help of unidentified persons, he purchased a mobile phone with a valid SIM card. Using the phone, he carried out a fan mailing of messages with the text "your card is blocked, contact the bank" to randomly selected numbers. Upon entering into voice contact with the victim of the crime, he introduced himself as a bank employee and asked for the card number and CVC code. Having received this information, he carried out remote purchases on the Internet, causing damage to several victims totaling 295 thousand rubles <6>.
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<6> Criminal case N 1-343/2018 // Archive of the Moscow District Court of Kazan.
Unfortunately, among the identified crimes, in connection with which criminal cases have been initiated, investigations have been conducted and judicial acts have been issued, cases dominate when a person gained access to someone else's credit or other payment card under random circumstances and used it as his own when paying for purchases. Among the studied cases, 65% had such a plot. On their example, the true - extremely high - degree of public danger of the crime in question is not reflected, and in essence they have little difference from ordinary fraud, responsibility for which is provided for in Part 1 of Article 159 of the Criminal Code of the Russian Federation.
According to Chinese sources, fraud using electronic means of payment is many times more common when conducting electronic trading, settlements and other transactions using cryptocurrencies, as well as when conducting online lotteries and some types of gambling. In this case, the "portrait" of the fraud subject is completely different: These are people with programming skills who invest money in creating an imitation of legitimate (or relatively legitimate, since gambling is not allowed in most of China) activities. Back in 2013 The law enforcement agencies of the People's Republic of China began to identify the facts of fraudulent actions using cryptocurrencies. For example, over 4,000 people were injured as a result of the actions of a person who created an online platform for trading cryptocurrency. In 2017, the activity of cryptocurrency exchanges was completely banned in China, but even the extensive means of monitoring the functioning of Internet resources at the disposal of the state do not allow it to be stopped: Chinese investors are served by over 20 sites registered outside the state <7>. In connection with the above, it can be concluded that fraud using electronic means of payment in the PRC has the features of "white-collar crime" and is part of an ultra-profitable criminal business.
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<7> China's State Media Takes Aim at Crypto Traiding // Coindesk.
Thus, the subject of fraud committed using electronic means of payment is endowed with identical legal characteristics in the criminal legislation of Russia and the People's Republic of China, but the scope of criminal efforts in the countries under consideration is diametrically different.
Turning to the analysis of the subjective side of fraud using electronic means of payment, we will proceed from its mandatory and optional features.
As is known, an obligatory sign of the subjective side of the crime is guilt, i.e. the mental attitude of the subject to the deed and its consequences <8>. In the legislation of the Russian Federation and the People's Republic of China, fraud using electronic means of payment refers to intentional crimes. At the same time, Article 25 of the Criminal Code of the Russian Federation distinguishes between direct and indirect intent, and art. 14 of the Criminal Code of the People's Republic of China does not contain such differentiation, although it can be considered from its content (the Chinese legislator uses such a sign as a desire or conscious assumption of socially dangerous consequences to characterize intent).
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<8> Yurchak E.V. Theory of guilt in law: monograph. Moscow: Prospekt, 2017. pp. 21-24.
Theft as a criminal act is committed with direct intent <9>. In its structure, Part 2 of Article 25 of the Criminal Code of the Russian Federation highlights a person's awareness of the public danger of an act, his foresight of the onset of socially dangerous consequences and the desire for their onset.
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<9> Fighters A.I. Crimes against property. St. Petersburg: Law Center Press, 2002. p. 135.
Analyzing the structure of intent as part of fraud using electronic means of payment, the following circumstances can be identified.
The subject is aware of the social danger of what he has done: he understands that he is carrying out an unauthorized and contrary to the will of the owner encroachment on his property. In particular, the perpetrator understands the illegality of the transaction (transactions using electronic means of payment), even in cases where he commits it situationally. For example, a court verdict under Part 1 of Article 159.3 of the Criminal Code convicted a citizen who accidentally found a bank card lost by the owner. Before the latter discovered the loss and took measures to block operations on it, the convict managed to make a number of purchases of goods for his own needs, spending 42 thousand rubles. At the same time, he realized that he had no authority to dispose of funds in the specified account <10>.
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<10> Criminal case No. 1-70/2016 // Archive of the Leninsky District Court of Vladimir.
When using special devices designed to obtain information from a credit card or other data about the owner of electronic means of payment, this fact is fully covered by the intention of the perpetrator. Among such devices, skimmers (special devices-pads that are installed on the payment terminal and read information from the card), as well as video cameras (allow you to fix the PIN code of the payment card) and malicious software that can be used to gain access to the customer base of a bank or other institution (retail network, etc.). When committing a cyberattack, the perpetrator's intent may not cover the awareness of causing future damage to a particular person, since such actions have banking and other resources as their addressee.
If the perpetrator enters into personal, usually remote (telephone) contact with the victim, posing as a bank employee and offering to update information about payment cards and their details, he uses classic schemes of deception and abuse of trust inherent in other types of fraud. His intent encompasses the realization that the victim perceives him as an employee of the bank and discloses confidential information. At the same time, the position of the Plenum of the Supreme Court of the Russian Federation regarding the fact that in this case the intent for secret theft is being realized (recall, in accordance with the Resolution of November 30, 2017 N 48, it is recommended to qualify such actions as theft) may be questioned. If theft is committed in this case, then the perpetrator realizes the secret nature of his own actions as committed in the absence of the owner or unnoticed by him (paragraph 2 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 27, 2002 No. 29 "On judicial practice in cases of theft, robbery and robbery").
Indeed, the cashing of funds on the basis of access, information about which is received from the victim, is carried out in his absence. However, it is thanks to the communicative verbal interaction with the cardholder that this information is made available to the perpetrator. Most likely, when preparing clarifications on the qualification of special types of fraud, the Plenum of the Supreme Court of the Russian Federation took into account its own positions on the qualification of other types of theft and actually equated actions aimed at extracting information about access to payment cards with the behavior of so-called "thieves on trust", i.e. persons facilitating access to other people's property through distraction the attention of the victim or bringing false information about the ownership of this property to the attention of third parties.
But such a restrictive interpretation, in fact, leads to a loss of meaning in the existence of a special criminal law prohibition on fraud using electronic money. If the most common criminal operations can be classified as theft, and others as a combination of theft and crimes in the field of computer information, the expediency of the existence of a special norm turns out to be close to zero.
Situations are quite interesting when the perpetrator possesses not only an electronic means of payment (for example, a credit card that does not belong to him), but also a means of access to it. It is proved in the literature that in such cases, the mechanism of debiting funds corresponds to the rules for cashing them out using an ATM, and there are no signs of fraud in this situation <11>. However, this does not seem to be entirely correct: if the PIN code from the card or other ways of accessing it were obtained from its rightful owner by deception or abuse of trust, then, although the mechanism of cashing out or other operations requiring identification does not differ, the signs of deception remain. In other words, in all cases when access to funds is obtained by deception or abuse of trust, it is necessary to qualify what was done under Article 159.3 of the Criminal Code of the Russian Federation. Otherwise, making purchases for amounts that do not require identification of the owner should also not be qualified as a crime, because the established procedure for the retail sale of goods is not violated, and the calculation mechanism remains identical to the legal one (authorized employees of trade organizations do not have the obligation to verify the legality of the disposal of each buyer's card). The Plenum of the Supreme Court of the Russian Federation stressed that theft from a bank account is the secret withdrawal of funds using someone else's or fake payment card, associated with the processing of confidential information (paragraph 25.1 of the Resolution "On judicial practice in cases of theft, robbery and robbery"). Thus, awareness of the public danger and illegality of what has been done, along with understanding the lack of the right to make non-cash payments, acts as a special addition to the deceptive method of seizing someone else's property. The Constitutional Court of the Russian Federation in its Ruling of July 9, 2021 No. 1374-O proceeded from the fact that the deception by the kidnapper of an authorized person of a trade or other organization (abuse of his trust) may be regarded as actions to create conditions for the secret theft of funds from a bank account, i.e. theft, however, he admitted that the federal legislator may further draw other normative distinctions of these compositions.
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<11> Borovykh L.V., Korepanova E.A. The orientation of deception as part of fraud using payment cards // Bulletin of the Perm University. Legal sciences. 2016. N 1. pp. 98 - 104.
The subjective signs of fraud using electronic means of payment in both Article 159.3 of the Criminal Code of the Russian Federation and Article 196 of the Criminal Code of the People's Republic of China are a selfish goal consisting in probable illegal enrichment (a constructive sign), and selfish motivation, as a result of which there is intent to commit a crime (an optional sign). In terms of content, they coincide with the general provisions that have been comprehended in the legal doctrine regarding the nature of self-interest and targets in the structure of the subjective side of crimes of a selfish orientation <12>. When committing fraud using electronic means of payment, the culprit assumes the chosen modus operandi (course of action) the method of the easiest and safest enrichment. At the same time, in paragraph 26 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated November 30, 2017 N 48, a selfish goal is interpreted as a desire to seize and (or) turn someone else's property in their favor or dispose of said property as their own, including by transferring it into the possession of other persons, whose circle is not limited.
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<12> Antonyan Yu.M., Enikeev M.I., Eminov V.E. Psychology of crime and punishment: monograph. M.: Prospekt, 2017. P. 34; Pshenichnov I.M. Responsibility for hiring in the criminal legislation of the Russian Federation: theoretical and applied research: monograph. M.: Prospekt, 2019. pp. 4-9; Tyutyunnik I.G. Selfish motive in the structure of crimes against personal freedom. Criminal law and criminological analysis. Moscow: Justicinform, 2017. pp. 8-13.
For comparison, in the Criminal Code of the People's Republic of China, the characteristic of intent as part of fraud using electronic means of payment reflects the following parameters.
Firstly, a person is aware of the socially dangerous nature of his actions, which consist in carrying out transactions using a falsified, expired or non-owned credit card, and their consequences in the form of causing material damage to the owner of funds or the bank, or in the form of extracting uncontrolled income from engaging in prohibited activities (for example, cryptocurrency turnover).
Secondly, the perpetrator desires the occurrence of these consequences, since he acts out of selfish motives or in order to profit from illegal activities. The sign of a relatively large size established in Article 196 of the Criminal Code of the People's Republic of China makes it possible to exclude from the scope of criminal prosecution the commission of small household transactions as not possessing an appropriate degree of public danger. This experience would be useful in further improving the provisions of Article 159.3 of the Criminal Code of the Russian Federation.
On the other hand, the presence in Article 196 of the Criminal Code of the People's Republic of China of the positions "malicious exceeding of the limit" and "use of a stolen credit card" should also be assessed ambiguously. The first of the acts on the subjective side is characterized by direct intent and selfish purpose, it is implied that the titular owner of the credit card does not return it after receiving notification from the bank that the card has expired or its credit limit has been exhausted. It seems that modern technologies make it possible to prevent the use of such a card by blocking it by the bank that issued it, so the public danger of such actions looks quite controversial.
If there are a number of criminal law prohibitions related to fraud using electronic means of payment in the Criminal Code of the People's Republic of China, it becomes possible to prosecute persons whose fraudulent actions were associated with settlements under a letter of credit, turnover of securities or government bonds, misuse of funds. In fact, the provisions of the special norms of the Criminal Code of the People's Republic of China (art. 195, 197, 273) allow us to identify the most dangerous cases when independent qualification of those actions that were carried out to optimize the disposal of funds stolen fraudulently using electronic means of payment is required.
Summing up, it is necessary to conclude that the subjective signs of fraud using electronic means of payment in the criminal legislation of Russia and China reflect the intentional nature and mercenary orientation of criminal actions committed during non-cash payments or when obtaining unauthorized access to confidential information about the person - owner of funds credited to the balance of a credit, settlement or other payment card, or an electronic payment system.
