The principles of sentencing for fraud using electronic means of payment in the criminal legislation of Russia and China
In the article, the authors consider the principles of sentencing for fraud using electronic means of payment in the criminal legislation of Russia and China. Attention is focused on the law enforcement practice of the two countries.
Keywords: principles of sentencing, criminal law counteraction, the nature and degree of public danger of the crime, fraud using electronic means of payment, the Criminal Code of Russia, the Criminal Code of China.
The problem of punishability of socially dangerous acts is one of the main ones in criminal law. In the modern period, scientists are alarmed to note a decrease in the regulatory role of most institutions of criminal law, including in connection with the difficult definition of proportionate punishment <1>, the presence of significant errors in sentencing <2>, the inability to adequately transform the harm caused by the offender into a specific type and amount of punishment <3>. The new norms of the Special part of the Criminal Code of the Russian Federation, being in the stage of practical approbation, in some cases remain unclaimed by law enforcement officers, since the ideas about the punishability of acts enshrined in them are limited only by the content of sanctions, not adapted in the explanations of higher judicial instances.
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<1> Podroikina I.A. Theoretical foundations of the construction of the system of criminal penalties in the criminal legislation of Russia: Dis. ... doct. Jurid. sciences'. Omsk, 2017. p. 5.
<2> Enikeeva L.F. Differentiation and individualization of punishment according to the totality of crimes: Dis. ... cand. Jurid. M., 2006. p. 4.
<3> Kryukov V.V. Goals of criminal punishment: concept, types, mechanisms of achievement: Dis. ... cand. Jurid. sciences'. Saratov, 2017. p. 4.
In the criminal legislation of the People's Republic of China, the criminal law prohibition exists for a longer period, however, in this case there are practical difficulties. They are associated with the peculiarities of the construction of sanctions in the norms of the Criminal Code of the People's Republic of China, as well as with the relative mixing and intersection of acts identical in content, differing in the severity of punishment. This situation became possible due to the fact that a comprehensive revision of criminal law norms, which resulted in the adoption of the current Criminal Code of the People's Republic of China in 1997, was aimed at criminalizing new types of deviant behavior that appeared during the creation of the mechanism of a market economy <4>. Against the background of the rapid development of electronic technologies and their integration into all levels of economic relations, the final unification of criminal law prohibitions in the legislation of the People's Republic of China has not occurred.
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<4> Pan Dongmei, Gao Mingxuai. The formation and development of Chinese criminal law // Bulletin of St. Petersburg State University. Series: Law. 2018. Vol. 9. Issue. 2. Pp. 215 - 229.
Guided by the above, it is possible to identify general and special principles of sentencing for fraud using electronic means of payment.
Domestic scientists identify a different number of principles of sentencing, defining them as guidelines on which the general principles of sentencing are based <5>. Among them are legality, humanization, individualization <6>, differentiation of criminal liability <7>, economy of measures of criminal repression <8>. The principles of sentencing are combined with the general principles of criminal law and supplemented by such positions as certainty, reasonableness and motivation of punishment in the sentence <9>. Some authors, on the contrary, defend the thesis of a hierarchy of principles of criminal law, isolating the principles of sentencing as a subordinate set and believing that they correct and direct judicial discretion in sentencing <10>. The analysis of the opinions expressed allows us to conclude that the principles of sentencing, being the fundamental criteria for its compliance with the committed crime, determine the content of the general principles of sentencing established in Article 60 of the Criminal Code of the Russian Federation.
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<5> Shkredova E.G. Principles of sentencing as one of the criteria of its justice // Criminal law. 2016. N 2. pp. 102 - 108.
<6> Menshagin V.D. Basic principles of the application of punishment under Soviet criminal law // Application of punishment under Soviet criminal law / Ed. V.D. Menshagin, N.D. Durmanov. M.: Gosyurizdat, 1958. pp. 3-17.
<7> Nepomnyashchaya T.V. The purpose of criminal punishment: general principles, criteria. Omsk: Publishing House of OmSU, 2003. p. 22.
<8> Burganov R.S. Principles of criminal law and principles of sentencing: Dis. ... cand. Jurid. sciences'. Kazan, 2006. p. 110.
<9> Bazhanov M.I. The imposition of punishment under Soviet criminal law. Kiev: Vishcha shkola, 1980. p. 14.
<10> Sabitov R.A. Principles of criminal punishment // Legal science and law enforcement practice. 2017. N 2. pp. 59-65.
Based on this, it is necessary to identify general and special principles of sentencing.
At the same time, the general principles are based on the provisions of Chapter 2 of the Criminal Code of the Russian Federation and include legality, equality of all before the law and the court, justice, and humanism. The provisions of Articles 3-7 of the Criminal Code of the Russian Federation are reflected in all its norms and as such can be attributed to the principles of sentencing.
Special principles, in turn, should include the individualization of punishment, the conformity of the prescribed punishment with the possibility of achieving the goals of punishment set out in Article 43 of the Criminal Code of the Russian Federation, differentiation of criminal legal impact (i.e. the possibility of choosing between the imposition of punishment or the use of other measures of a criminal nature). This approach has already been partially justified in the scientific literature <11> and seems reasonable in order to study the principles of sentencing for fraud committed using electronic means of payment.
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<11> Ryabko N.V. On the question of the concept, goals and principles of sentencing // JurisT-Pravoved. 2017. N 2. pp. 59-63.
In the Criminal Code of the People's Republic of China, as well as in the Russian criminal law, general principles are highlighted, among which such as legality, equality, and compliance of punishment with the committed crime are fixed (Articles 3 - 5). In the scientific literature, proposals have been made to include provisions on humanism in the system of principles <12>; at the same time, as in Russia, the general principles of criminal law are reflected in the structure of the principles of sentencing. In the legislation and legal doctrine of China, the monistic system occupies a dominant position, according to which the principle of its individualization plays a major role in the imposition of punishment <13>.
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<12> Dongmei Pan, Mingxuan Gao. Comparative analysis of the principles of criminal law in China and Russia // Lex russica. 2018. N 12. pp. 119 - 131.
<13> Liu Mingxiang. The Chinese system of complicity in crime as a monistic system // Bulletin of St. Petersburg State University. Series: Law. 2018. Vol. 9. Issue 4. pp. 584-592.
Differentiation of criminal legal impact can also be recognized as a special principle of sentencing in accordance with the Criminal Code of the People's Republic of China, since Article 37 of the Criminal Code of the People's Republic of China provides for the refusal to apply punishment to persons who have committed minor crimes.
Thus, the general and special principles of sentencing established in the Criminal Code of the Russian Federation and in the Criminal Code of the People's Republic of China are generally identical and - with different value bases and the structure of protected relations - equally suitable for imposing a fair punishment corresponding to the nature and degree of public danger of the crime.
Turning to the sanctions imposed for committing fraud using electronic means of payment, it should be noted that in accordance with Article 159.3 of the Criminal Code of the Russian Federation, fraudulent actions can be classified as crimes of minor (Part 1), medium gravity (Part 2) or serious (Part 3, Part 4). The Criminal Code of the People's Republic of China does not know the categorization of crimes, However, a comparative analysis of the provisions of Articles 195, 264 of the Criminal Code of the People's Republic of China allows us to conclude that the latter composition is more severe. Accordingly, crimes related to the violation of the order of the socialist market are inferior in severity to crimes against property.
Taking into account the presence of the main and qualified components of fraud using electronic means of payment in the criminal legislation of Russia and China, it can be concluded that the general and special principles of sentencing are extrapolated in the procedural activities of courts as follows:
- the principle of legality - when assessing the compliance of the act with the legal characteristics of the composition of fraud committed using electronic means of payment;
- the principle of equality of all before the law and the court - in assessing the delictworthiness of a person subject to criminal liability;
- the principle of justice - in assessing the nature and degree of public danger of a crime, its consequences and the identity of the perpetrator (the Criminal Code of the People's Republic of China provides for a separate assessment of the "merits" of the defendant, expressed in helping to expose the criminal activities of other persons, like the well-known Criminal Code of the Russian Federation concept of surrender);
- the principle of humanism - when assessing the possibility of applying punishment in the form of imprisonment to a person (it should be noted that such a principle is not provided for in the Criminal Code of the People's Republic of China);
- the principle of individualization of punishment - in assessing the size of the abducted, the role of the defendant in the commission of a crime and other data about his identity;
- the principle of differentiation of criminal legal impact - Part 1 and Part 2 of Article 159.3 of the Criminal Code of the Russian Federation are crimes of small and medium gravity, the commission of which does not exclude the use of a judicial fine, not punishment, and Article 195 of the Criminal Code of the People's Republic of China allows the refusal to apply punishment if the damage caused by the crime is not relatively large; in addition, according to any of the parts of Article 159.3 of the Criminal Code of the Russian Federation , a suspended sentence may be applied;
- the principle of conformity of the prescribed punishment with the possibility of achieving the goals of punishment - in determining the final punishment with the use of both the main and additional, in determining the amount of the fine as a mandatory additional punishment.
Accordingly, it can be concluded that the general principles of sentencing cover the economy of measures of criminal repression, a rational approach to choosing the type and size of punishment, and the inevitability of punishment. In order to impose a fair punishment, it is necessary to take into account the nature and degree of public danger of the committed crime and the identity of the perpetrator, the presence of mitigating and aggravating circumstances, as well as the impact of the imposed punishment on the correction of the convicted person and on the living conditions of his family.
The Supreme People's Court of the People's Republic of China practices the adoption of clarifications on the qualification of individual encroachments, which are sent to lower courts, but are not published in the open press, although their number is quite large (for example, in July 2019, the Supreme People's Court of the People's Republic of China canceled 103 clarifications, reducing their total number to 561 <14>).
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<14> The Supreme People's Court of China has overturned 103 judicial clarifications // Xinhua.
The presence of a legal and developed private sector of the economy is rightly recognized as a condition contributing to the development of active organized crime, including transnational crime <15>. Since the process of formation of the private sector in the economies of Russia and China roughly coincided in time, this influenced both the formation of organized criminal groups committing economic crimes and the establishment of criminal ties between Russian and Chinese criminal structures. The development of the high-tech market and its simplified cross-border operation, in turn, contributed to the active development of its resources for criminal purposes.
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<15> Repetskaya A.L. Chinese organized crime in Russia of the post-Soviet period // Criminal law of the Russian Federation: problems of law enforcement and prospects for improvement: Collection of materials of the All-Russian scientific and practical conference / Ed. by R.A. Zabavko. Irkutsk: East Siberian Institute of the Ministry of Internal Affairs of Russia, 2018. pp. 94-98.
Realizing this, Chinese courts use all the punitive potential inherent in criminal law norms that establish liability for fraudulent and other criminal acts committed using electronic means of payment. In particular, when an organized group commits a crime, up to 46% of court sentences are imposed with the imposition of the death penalty, even if the group's activities did not pose a threat to public safety, life and health of citizens <16>. For example, in 2018. The courts of the People's Republic of China considered 5,489 criminal cases of economic crimes committed by organized groups and communities against 29 thousand people <17>. Since 2016, the share of electronic payment fraud registered by the Ministry of Internal Affairs of the People's Republic of China is about a third of the total number of crimes related to financial fraud, and up to half of them are committed in groups or on a multi-episode basis. To a large extent, this is facilitated by the difficult mechanism of cashing out funds on the credit card balance. In this regard, up to 80% of fraud involving the use of electronic money involves conducting illegal transactions on bank cards <18>. The drop in the number of registered crimes of this type in 2016-2018 (by 20% annually) can be explained by the fact that the victims themselves are interested in performing such operations, who know that they resort to an illegal method of cashing out funds. In this regard, they do not show significant interest in contacting law enforcement agencies when they are lost.
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<16> Troshchinsky P.V. The fight against crime in China: a regulatory aspect // Journal of Russian Law. 2015. N 8. pp. 47-58.
<17> The main results of the work of the Supreme People's Court of the People's Republic of China in 2018 // The Supreme People's Court of the People's Republic of China.
<18> In China, the level of fraud has been falling for the third year in a row // IA Regnum.
In addition, Chinese law enforcement practice is characterized by the widespread use of administrative, legal and technical controls that make it difficult to commit crimes related to the exploitation of electronic technologies.
So, in the spring of 2015, employees of the public security unit of the Nanjing Police (PRC) detained 8 people involved in the commission of credit card fraud. A criminal case was initiated at the request of a citizen whose credit card data was read by a special device used by fraudsters and connected to an ATM. During the investigation, the involvement of the detainees in 16 more episodes of similar actions was established <19>.
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<19> China News: The criminal group has been exposed in fraud using bank cards.
Summing up, it can be concluded that the principles of sentencing for fraud involving electronic means of payment in the legislation of Russia and China are not uniformly disclosed, but this does not prevent the imposition of legitimate and reasonable sentences. Based on the results of studying the materials of criminal cases considered by the Russian courts, it can be noted that none of the sentences were changed by the appellate instance. For judicial activity in the People's Republic of China, changing sentences in most cases is uncharacteristic (higher courts review mainly sentences with the imposition of the death penalty or indefinite imprisonment, since in 2007 such an obligation was enshrined in law <20>).
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<20> China: Amnesty International welcomes the review of death sentences in the Supreme Court and calls for the complete abolition of the death penalty: press release // Amnesty International.
