电信诈骗中支付结算行为下帮信罪与掩隐罪法律适用问题

The Law Application of the Crime of Helping Letter and the Crime of Concealing in the Act of Payment and Settlement in Telecom Fraud

摘要: 电信诈骗中，与支付结算帮助行为密切相关的两大罪名：帮信罪与掩隐罪在法律适用上存在区分难的问题。支付结算行为的本质为资金的转移，是包括转入和转出的整体行为。从客观方面来看：以“控制说”为判断电信诈骗犯罪既遂的标准，并以既遂时间点为区分，帮信罪具有帮助犯的性质因而实施于电信诈骗犯罪实施过程中、尚未既遂之前；掩隐罪作为事后帮助行为发生于电信诈骗犯罪既遂之后。从主观因素来看：两罪对于“明知”构成要件的内涵为“明确知道”或“应当知道”，帮信罪“明知”的对象为上游犯罪系利用信息网络实施犯罪；掩隐罪则为“明知”是犯罪所得及其收益，且需带有帮助电信诈骗犯罪行为人逃避司法追究的特定目的。

Abstract: In telecommunication fraud, it is difficult to distinguish the two major crimes closely related to the payment and settlement help: Crime of assisting information network criminal activities; Crime of covering up or concealing criminal gains or proceeds from criminal gains. The essence of payment and settlement behavior is the transfer of funds, including the overall behavior of transferring in and out. From the objective point of view: taking the control theory as the standard to judge the accomplished crime of telecommunication fraud, and taking the accomplished time point as the distinction, the crime of assisting information network criminal activities has the nature of an accomplice and is implemented during the implementation of telecommunication fraud, before the accomplished crime; The crime of covering up or concealing criminal gains or proceeds from criminal gains occurs after the accomplishment of the upstream crime of fraud as an act of helping afterwards. From the subjective point of view: the connotation of the constitutive elements of “knowing clearly” is “knowing explicitly” or “should know,” the object of the crime of assisting information network criminal activities is that the upstream crime is using information network to commit a crime; The crime of covering up or concealing criminal gains or proceeds from criminal gains is knowing that it is the proceeds of crime and its proceeds, and it needs to have a specific purpose of helping the perpetrators of telecommunications fraud to evade judicial investigation.