非法第四方支付的刑法规制——“聚合方式”行为实质认定方法的提出

Criminalization of Illicit Fourth-Party Payments—Proposal of a Methodology for Determining the Materiality of the Act of “Aggregation”

摘要: 非法第四方支付的刑法定性在学界存在观点聚讼、在司法实践中存在“同案不同判”现象，这源于第四方支付的技术复杂性。以开设网络赌场情形作为切入点，为准确适用刑法规范，有必要明晰第四方支付的行为实质、探究第四方支付的具体类型，从而化约复杂性。常见的“业务模式型”行为实质判断方法不具备认定犯罪的方法论意义，应当转向“聚合方式型”行为实质判断方法并结合“非法资金支付结算业务”的解释认定非法第四方支付的行为实质。在“聚合方式型”实质认定方法指引下，对于判断为资金聚合类型的行为应当认定为非法经营罪，同时，采取行为共同说认定为开设赌场罪的共犯不存在规范障碍。对于判断为通道聚合类型的行为可以认定为帮助信息网络犯罪活动罪，掩饰、隐瞒犯罪所得、犯罪所得收益罪的判断应当结合法益和严格的证据标准认定。

Abstract: The criminal law characterization of illegal fourth-party payments has been the subject of much litigation in the academic community and the phenomenon of “different judgments in the same case” in judicial practice, which stems from the technical complexity of fourth-party payments. In order to accurately apply the criminal law norms in the case of opening an online casino as an entry point, it is necessary to clarify the essence of the behavior of the fourth-party payment and explore the specific types of the fourth-party payment, so as to simplify the complexity. The common “business model-type” method of judging the substance of the act does not have the methodological significance of determining the crime, and should be turned to the “aggregation mode-type” method of judging the substance of the act and determine the substance of the act of illegal fourth-party payment in conjunction with the interpretation of the “illegal fund payment and settlement business”. Under the guidance of the substantive determination method of the “aggregation type”, acts judged to be of the type of capital aggregation shall be recognized as illegal business crimes, and, at the same time, there is no normative obstacle to adopting the joint theory of acts to be recognized as accomplices to the crime of opening casinos; acts judged to be of the type of channel aggregation may be recognized as crimes of assisting criminal activities in the information network, and the crimes of disguising or concealing the proceeds of crime and the proceeds of crime judgment should be determined in the context of the interests of the law and a strict standard of proof.