Lawyer Shao Shiwei argues that in a case involving alleged illegal foreign-exchange dealing through virtual currency, insufficient evidence for an illegal business operations charge does not mean prosecutors can simply move to a charge of helping information-network criminal activity.
According to the article published by MarsBit, prosecutors eventually accepted Shao's view that evidence was insufficient to establish the crime of illegal business operations in the case. But after reaching that point, the two sides split again: the prosecution still maintained that even if the conduct did not amount to illegal business operations, it should still constitute the offense of helping information-network criminal activity.
Shao's position is that the absence of sufficient evidence for illegal business operations does not justify a fallback conviction for the separate offense. He writes that helping information-network criminal activity has its own independent and complete constituent elements. If the upstream matching foreign-exchange conduct does not qualify as "a crime committed through information networks," then the helping charge cannot stand. Based on the facts and evidence currently available in the case, he says, the client does not constitute any crime.
The central question in the dispute
The article frames the issue this way: when upstream conduct uses WeChat, Telegram, online banking, or virtual currency, does that automatically make it a crime "committed through information networks" under Article 287-2 of China's Criminal Law? And in matching foreign-exchange transactions, what conditions must be met before the conduct can count as an information-network crime for the purpose of the helping offense?
Shao describes the offense as one that looks simple on the surface but becomes highly complicated in application. The statutory wording is brief, he says, while judicial practice covers a wide range of scenarios and leaves several key concepts unexplained, which has fueled disputes over how the offense should be applied.
No direct definition in the cited rules, the author says
The piece lists the legal and normative documents tied to the offense: Article 287-2 of the Criminal Law, introduced by the 2015 Amendment IX to the Criminal Law; the 2016 document Fa Fa [2016] No. 32 issued by the Supreme People's Court, Supreme People's Procuratorate, and the Ministry of Public Security; the 2019 judicial interpretation Fa Shi [2019] No. 15; the 2020 "card-cutting" campaign memorandum Gao Jian Si Ting [2020] No. 12; the 2021 document Fa Fa [2021] No. 22; the Anti-Telecom and Online Fraud Law, effective Dec. 1, 2022; the March 22, 2022 "card-cutting" campaign memorandum; and the 2025 opinion Fa Fa [2025] No. 12 on cases involving the helping offense.
After reviewing those materials, Shao says he found that none directly defines or explains the concept of "using information networks to commit a crime." In his account, the documents all assume that the upstream offense already falls into that category, then move on to downstream issues such as knowledge, seriousness of circumstances, and the distinction between the helping offense and the offense of concealing or disguising criminal proceeds.
That gap, he argues, is exactly where the defense has room to argue. When prosecutors bring a helping charge, he writes, defense counsel is entitled to require proof that the upstream conduct was in fact a crime committed through information networks, not merely a crime in which information-network tools appeared somewhere along the way.
Shao's proposed test: the network must enter the execution stage
In the absence of a direct statutory definition, Shao says the boundaries of the phrase should be derived from the wording of the statute, its place in the Criminal Law, the structure of the offense, and the types of assistance listed in the law.
His proposed standard is that the information network must serve a substantial and central role as a tool or platform in the execution of the upstream crime. If the network appears only in contact, planning, or post-offense handling, while the actual execution of the upstream conduct is completed offline, then it should not be treated as a crime committed through information networks.
Reading Article 287 in context
The article says Article 287 originally functioned as a cautionary provision for crimes committed using computers, reminding judicial authorities that computers and networks are tools. Because a case involves a computer, it does not follow that it should be treated only as a computer crime; charges should still track the offense actually constituted, such as fraud or theft.
Amendment IX to the Criminal Law in 2015 then added two provisions after Article 287. Article 287-1, the crime of illegally using information networks, turned certain online preparatory acts that would otherwise belong to other crimes into an independent offense. Article 287-2, the crime of helping information-network criminal activity, separately criminalized technical support, payment settlement, and other assistance provided with knowledge that another person was using information networks to commit crimes.
From that structure, Shao argues that the phrase in Article 287-2 sits between two extremes. It is broader than Article 287-1 and is not limited to purely online-space conduct such as setting up websites or posting information. But it is narrower than an open-ended reading of Article 287 that would treat any crime involving a phone or computer as enough.
If Article 287-2 carried exactly the same breadth as Article 287, he writes, the upstream offense for the helping charge could be almost any crime, turning the offense into a catch-all. On the other hand, if it were limited only to conduct described in Article 287-1, its scope would become too narrow and would fail to cover the many telecom fraud and online gambling cases seen in practice. The article says that would also conflict with the legislative purpose of Amendment IX.
Shao cites the 2025 opinion issued by the Supreme People's Court, Supreme People's Procuratorate, and the Ministry of Public Security on handling criminal cases involving helping information-network criminal activity and related offenses. The opinion, as quoted in the piece, says the offense was added "to respond to the development and changes of new types of information-network crime" and was aimed at cracking down on "a series of black and gray industries generated around crimes such as telecom and online fraud." On that basis, he argues that the phrase in Article 287-2 has an independent meaning of its own.
The full name of the offense matters
The article also points to the full title of the crime: "helping information-network criminal activity," not simply "helping criminal activity." In Shao's reading, "information network" limits the criminal activity itself. That means the offense is aimed at criminal conduct with an information-network character, not every type of criminal conduct. For that character to exist, the network cannot be merely incidental; it must play a real role in the crime.
The listed forms of assistance point the same way
Shao then turns to the forms of assistance listed in Article 287-2: internet access, server hosting, network storage, communications transmission, and other technical support, along with advertising promotion and payment settlement. Those are all services or support tied directly to the information-network layer. If an upstream offense has no substantial link to information networks, he argues, it would not need these forms of help. In his view, the legislature designed the offense with upstream crimes in mind that depend on information networks at the execution level.
The criminal-law meaning of "commit" or "carry out"
The article adds that the word "implement" or "carry out" in the phrase "using information networks to commit crimes" usually points to the execution stage in criminal-law analysis, rather than preparation or post-offense conduct. In that reading, information networks must be used during the execution stage and serve as the tool or platform through which the offense is carried out.
If the network was used only during planning, contact, or other preparatory acts, or later in the disposal of proceeds, while the criminal conduct itself was completed offline, Shao says the threshold should not be met.
Three broad approaches in practice and academia
Because there is no explicit statutory definition, Shao says court practice and academic writing roughly reflect three positions.
- A broad reading: any crime that involves information networks somewhere in the process qualifies. The article gives examples such as offline drug trafficking arranged online and offline intentional injury discussed through WeChat, adding that many judgments in practice effectively follow this view.
- A restrictive reading: represented in the article by Professor Liu Yanhong, this approach says the object of the assistance must be a person who uses information networks to commit crimes. Only then can the helping offense remain directly tied to principals in network crime and preserve its independent legal nature. On this view, using information networks must be a core means of the upstream offense, and the network must be irreplaceable or central as a tool.
- A middle-ground reading: this approach distinguishes between object-type network crimes and tool-type network crimes. The article says the helping offense should at least cover tool-type network crimes, but not traditional crimes that only happen to use a network at one incidental stage.
Shao says his own view is aligned with the restrictive and middle-ground approaches.
The issue will turn on the specific foreign-exchange model
The article ends by saying that abstract legal standards must ultimately be tested against the concrete pattern of conduct in a case. Matching foreign-exchange transactions can operate in different ways. Some are completed entirely offline, while others run through online payment systems. Depending on the model, the conclusion on whether the conduct counts as a crime committed through information networks may differ completely.
According to the article, a follow-up piece titled "For the upstream offense in helping information-network criminal activity, the crime must be one committed through information networks — using a virtual-currency foreign-exchange case as an example (II)" will examine three typical matching foreign-exchange models in the case and explain why possible prosecutorial rebuttals should not succeed.