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GONG Chu, On Transnational Fraud in the Disguise of Love & Marriage

2020-05-26


简析借婚恋实施的跨国诈骗

On Transnational Fraud in the Disguise of Love & Marriage


摘要

笔者列举其处理过的两种类型的跨国诈骗,即常规婚恋型诈骗、非常规婚恋诈骗,介绍两类型案件中诈骗分子的作案手法,阐述其作为律师在这些案件代理中的工作体会,指出我国公安机关应立案侦查的法律依据,并强调打击此类犯罪的必要性。


Abstract

The author lists two categories of transnational fraud he has handled i.e. regular fraud in the disguise of love and marriage, and irregular fraud in the disguise of love and marriage. Both illustrate the modus operandi of the fraudsters in these categories of cases, which the author explains by using his working experiences in dealing with these types of cases. The author points out the legal foundations for Chinese police to file and investigate such cases and emphasizes the necessity of cracking down on these types of crimes.


作者

龚楚律师

中国人民大学国际法博士

执业方向:涉外争议解决

联系方式:13590496399 (微信)


The Author

Gong Chu (Oscar)

PhD. In Law, Renmin University of China

Practice scope: Dispute resolution

Mobile: 13590496399 (WeChat)


一、前言

I. Preface


笔者在涉外律师执业过程中接触到相当多的跨境诈骗,其中借“谈婚论嫁”而实施的诈骗犯罪为数不少。笔者谨从自己代理过的此类案件,进行简析。


The author has handled many transnational fraud cases during his legal career as a foreign legal service lawyer. Many of those transnational fraud cases involved the disguise of love and marriage. Hereinafter, the author makes a summary analysis on these categories of cases based on his history of handling such cases.


二、常规婚恋型诈骗

II. Regular fraud in the disguise of love and marriage


常规婚恋诈骗是犯罪分子独自、以团伙形式或通过中介(所谓“翻译公司”)作案。犯罪分子在国际婚恋交友网站上注册账户,发布交友或求偶信息,对受害人进行诈骗。


Regular fraud in the disguise of love and marriage can be committed by a single criminal suspect, or with the help of conspirators, or even through an intermediary; like so-called, “translation companies”. The criminals register their accounts on international dating websites and publish leads for dating, thus leading to fraud in the disguise of love and marriage.


绝大多数在国际婚恋交友网站上注册的中国女性,是出于正常交友或求偶目的。不少中国大陆女性借此成功嫁给外国男子并移民。犯罪分子则出于诈骗他人财物的不法目的,为自己或同伙拍摄性感照片或使用其他人的照片,配以虚假的个人介绍,营造出吸引异性的效果,使得被受害人主动联系。


For the most part, Chinese females with international dating website profiles have pure intentions to find a lover whom they aim to develop a relationship into marriage with. Not a few mainland Chinese females successfully get married to foreigners and ultimately immigrate. Criminals attract victims to contact on their own initiatives with the purpose of defrauding money or assets from them. The criminals take sexy personal photos, or use photos of other females, sometimes even making false personal introductions on the web pages, thus using sex charm to lure in males.


受害人上钩后,会外语的诈骗分子能够直接与受害人沟通的,自行实施诈骗。不会外语的则由“翻译公司”代为沟通,进行诈骗。实践中所见以前者为主。


After an unsuspecting victim takes the bait, a criminal who masters a foreign language will defraud the victim on her own by communicating directly with him. Those who do not speak a foreign language can communicate with the victims using a so-called, “translation company” in defrauding them. In practice, the former category is riddled with more fraud cases.


受害人群体通常是欧美澳等国男性,年龄各个阶层都有,但最大数量的受害人集中在中老年。


Victims of this category of fraud cases are generally males from Europe, North America and Australia, etc. The age groups vary. However, middle-aged and senior citizens from these regions tend to be the most targeted group.


诈骗是逐步有计划地实施,且根据实际情况进行灵活调整,以最大限度榨取受害人财物为目的。以欧洲D国男士M为例,其出生和成长在中欧J国,后偷渡到D国并获得D国国籍,从事工程师工作,经济宽裕。M年纪五十多岁,仍单身未婚。他在婚恋网站上浏览时被一帧美丽性感年轻的中国女性求偶照吸引,主动联系后,得到其热烈回应。期间M先后转账了几笔小额款项后,并赴中国见她。M被女方带去奢侈品店,购买贵重品作为礼物送给她。最后女子与其谈及最终结婚赴欧定居。M甚是高兴和期待,回D国后汇出一笔巨款,相当于他几年的收入,让女子能够一次性还清按揭并卖掉房子,赴欧与其共同生活。得款之后,女子态度恶化,找借口拉黑MM不忿,来华报警。


The scamming is committed step by step with a plan that is adjusted agilely to practical conditions, with the overall goal of extorting money and assets from the victims to the largest extent. The following is an example of how this scam works. Mr. M is from Country D in Europe. Mr. M was born and raised in Country J located in the middle Europe. Later he stole across the border of Country D, eventually becoming a citizen of Country D, and finding work as an engineer with decent income. At this point Mr. M was well over fifty; still single and still unmarried. One day after reviewing an international dating website, he found himself attracted to a photo of a young, pretty and sexy Chinese female who was seeking a partner. Mr. M wrote to this lady and she responded to him warmly. During their communication, Mr. M wired money to her and eventually flew to China to meet her. While in China, Mr. M was taken to luxury shops, where he bought precious items as gifts to her. After some time, the woman began to talk with Mr. M about getting married with him and moving to Europe. M became very happy and excited, and wired her a big sum of money. The large sum of money equaled several years of his income, but it was intended to be used for paying off the mortgage to her apartment, so that she could then sell the apartment. After selling the apartment, she would be able to move without worry to Europe with him. However, after the money was wired into her account, this woman suddenly changed her attitude, found some excuses, and eventually cut off communication with Mr. M. Obviously upset with her, Mr. M came to China to report to the police.


律师查案中发现该女子同时与多个不同国家男性“谈婚论嫁”,也成功骗取钱财,金额不一。警方对受害人进行询问后最终登记立案,上网追逃。此时该女子不知去向。后来得知她已提前通过跟另一个外国男子“结婚”,逃往另一国。


While conducting an investigation Mr. M’s lawyer found that this woman had been discussing love and marriage with males from different countries, and had successfully extorted different sums of money from these victims as well. Police, after questioning the victim, filed the case and began a cyber pursuit. Unfortunately by this point, the woman had already disappeared. It was later discovered that she had fled China for another country, by marrying another foreigner.


相对于M被诈骗的大金额,普遍存在数目大小不同的被骗者。由于各种不同原因,受害人通常选择放弃来中国报警。


Compared to the big amount defrauded from Mr. M, generally other victims exist as well, with sums defrauded differ. Due to various reasons, victims often give up the option of coming to China to report the crimes to police.


该类型诈骗与其他类型诈骗的显著区别是男女双方有当面接触。如未当面接触甚至发生亲密关系,一般诈骗数额发展不到巨大或特别巨大的程度。


One distinct feature in the disguise of love and marriage that makes it different from other types of fraud, is that in this category the woman and the man do meet each other. Without meeting face to face the “girlfriend”, or even having intimate behaviors with her, normally money defrauded from the victims will not easily reach the criterion of “huge” or “especially huge”.


M反映说,曾与“女友”发生过仅有的一次亲密行为中,感觉对方不是同一个女人。


Mr. M once mentioned that when he experienced his only intimate interaction with his “girlfriend”, he felt that the companion was not the same woman who received him and took him for shopping in China.


三、非常规婚恋诈骗

II. Irregular fraud in the disguise of love and marriage


作为本文分析的第二种类型的婚姻诈骗,笔者遇到最有特色的非常规婚恋诈骗是“黄金保姆诈骗系列案”。


As the second category of fraud in the disguise of love and marriage to be analyzed in this article, the most characterized irregular fraud in the disguise of love and marriage can be named as a Series of Cases in which so-called “Maids” defraud under the pretense of gold.


该类案件中诈骗集团按照以下套路实施犯罪:诈骗分子自称是菲律宾人,在中国大陆富豪家庭做保姆,她在国际婚恋网站上贴出美丽性感的私照,诚意交友,引诱男子上钩,伺机提出前去男子所在国相见,以定终身。犯罪分子先以办理护照签证、支付旅行社费用等事宜为由索取一些金钱。之后,诈骗分子通过所谓的旅行社代理发邮件通知受害人,告知其女友的登机日期。他从女友处也收到同样的电邮。之后受害人突然联系不上女方,就问旅行社。旅行社一查,说她遇到了麻烦,被海关扣押了。


This category of fraud cases are committed by fraudulent groups in the following ways: a criminal, claiming that she is from the Philippines and works as a maid at a wealthy mainland Chinese family home, publishes sexy intimate photos at international dating websites, allegedly seeking a partner. When a victim contacts her, she will timely propose to meet with him in his city to discuss marriage. Monies are transferred from the victim’s account on the pretext of paying for the costs associated with her passport, visa, and travel agency expenses. After providing the funds, a notification letter is sent out from the so-called travel agency to the victim, telling him the alleged flight date of his girlfriend. The “girlfriend” will also confirm by forwarding him emails from the fake travel agency. Later on, the victim finds he is unable to get to his girlfriend anymore; hence he contacts the travel agency and is told after a so-called check by the travel agency, that she has gotten into a big trouble and has been detained by Chinese customs.


受害人问具体情况。旅行社就对他说,她作为保姆工作的那个富有人家对她的工作非常满意,赠送一块黄金给她。她是想把这块黄金作为礼物送给男朋友,没想到被中国海关扣留。这块黄金重量大,非常值钱。经过旅行社和海关的努力沟通,海关要求女方为这块黄金缴纳一笔税款或罚款,即可发回黄金并放行。受害人听说是女友给自己的礼物,贪心一动,加之见美人心切,也不细想,就按指示一再汇款,直到骗子实在编不出理由或受害人自己账户资金耗尽或自己终于开始怀疑为止。


The victim asks more questions and is told by the travel agency that she was given a big block of gold from an employer who has been utterly satisfied with her service. The victim is led to believe that she has been thinking about giving her boyfriend the block of gold as a gift. Unexpectedly however, the gold was found and held by Chinese customs. This gold is of substantial weight, and has a high value. The victim is told that it will be released to her after a sum of tax money, or a fine is paid to the customs. The victim hearing that this gold is a gift for him, gets greedy, and while he may still be eager to meet his beauty, he ultimately repeatedly wires money to the fraudsters. The wire transfers continue until the fraudsters run out of excuses, until the victim’s bank account goes empty, or until he ultimately realizes that he may have been scammed.


最初笔者刚遇到此类案件,亦难辨真假,于是开始调查,马上就发现这是一个骗局。因为一看所谓海关扣押的文件就知道是伪造的,其他相关文件绝大多数被中国律师看一眼就马上知道是假的。即使有老练的诈骗集团分子会谎称要跟律师见面核实,最终都不敢出现在律师面前。


At the beginning when the author met such a case, foul play was not immediately clear. However, after an investigation by the lawyer, it was clear that the victim had been scammed due to the discovery of fraudulent customs documents. The lawyer was also able to easily discover at a single glance whether other relevant documents provided by the fraudsters were legitimate or fraudulent. Even some old-handed fraudsters claimed to meet with the lawyer for verification, nobody showed up eventually.


由于笔者一再遇到此类案件,再被其他受害人联系后,笔者直接提醒他们说,是诈骗,不要上当。但很多次受害人不信,忽略律师的提醒,接着汇款给诈骗分子。(你看,此时律师还不如按第一次的办事程序,先收律师费,再像模像样调查一番,受害人反而更能相信他确实被骗了。)诈骗集团是专业诈骗组织,熟谙受害人心理,犯罪分子们有分工,有专门的网站,有专人或多人担任不同角色分别联系受害人,交替营造出一个貌似真实的事件,毫无此类诈骗受害经历的普通人容易深信不疑。


Due to the lawyer’s extensive experience with these types of cases, the lawyer, being contacted again by another victim, will always directly warn the victim that it is a sheer fraud. Unfortunately, many victims don’t listen to the lawyer, and will continue to routinely send money to the fraudsters. Under these types of conditions, it would be better if the lawyer charges upfront fees, and handles the cases like the previous ones. That way the victims may be incentivized to take the lawyer’s advice more seriously. The fraudster groups are professional scammers, who know the psychological activities of their victims very well. They divide their fraud work among themselves, and the victims are contacted by various fraudsters with different roles. They have specially set up websites as well. All these in combination lead to a result where the victims can hardly be disillusioned by anyone else, needless to say by himself.


“黄金被海关扣押”之外,以“女友出发去乘机的路上遭遇车祸,急需现金支付医院费用”等作为理由诈骗,作案手法高度相似。


Apart from “The gold has been detained by customs” fraud scenario, other pretenses such as “Your girlfriend was knocked down by a car on her way to the airport, and cash is urgently needed for her medical treatment”, etc., with highly similar modus operandi.


四、分析和建议

IV. Analysis and suggestions


类型一是中国公民对外国人实施诈骗犯罪;类型二是外国诈骗集团(团伙成员可能含中国公民,但主犯一般是外国人)对外国人实施诈骗犯罪。按照中华人民共和国刑法第26266条之规定(见下文),中国公安机关都应当立案侦查。


Category I sees fraud crimes of Chinese citizens against foreign victims, and Category II sees foreign fraudster groups in which some members can be Chinese citizens, but the principals are usually foreigners, defrauding foreign victims. According to Articles 2, 6, 266 (see below) of Criminal Law of People’s Republic of China, the Chinese police should file and investigate all these cases.


实践中,类型一较易被各地公安机关接受报案并立案侦查,前提是受害人亲自来华报案。对于类型二,笔者至今尚未遇到立案或侦破的实例。虽然各个诈骗案的犯罪嫌疑人的具体位置极难识别,律师需要公安机关主动介入才能迅速查实以下信息:旅行社网站和电子邮箱有IP地址、电话有拨打和接听定位、等等,但诈骗分子提供给受害人的汇款指引能提示赃款进入的银行账户的具体开户地址,受理立案的证据线索是现成的。


In practice, Category I cases are easier to be accepted by police units from territory to territory in mainland China and investigated, usually with the precondition that a victim comes to China to report his case. As for Category II cases, the author has yet to see a case filed or solved. The detailed positions of the criminal suspects are extremely difficult to ascertain, but a Chinese lawyer also needs a police unit to intervene on its own initiative; to pin down information such as the IP addresses of the travel agency’s website, the fraudsters’ emails, and the GPS positioning of the phone calls, etc. Sometimes, clues for the police to file and investigate a case already exist; such as the money receiving information provided by the fraudsters to the victims, that can clearly tell the address of the bank office with which the fraudsters’ bank account was opened.


笔者亦为某受害者P在我国网络违法犯罪举报网站上为其进行了报案,提供了案情介绍、授权书、所函、律师证、诈骗邮件资料、受害人转账信息、收款行信息、诈骗集团网站和电邮地址及电话号码等信息,未能解决。


The author once filed a complaint against a fraudster group on behalf of a Mr. P at the website of Internet Crime Report Center. The author provided a case story, power of attorney, a letter of introduction from the lawyer’s firm, a lawyer certificate copy, proofs, the victim’s bank slips, the beneficiary bank information, the website of the fraudsters, and even included email addresses plus telephone numbers, etc. Unfortunately, he saw an unsolved result.


实地报警、网络报警效果不佳,客观上纵容了这两类跨国诈骗在中国境内不断发生,猖獗不止。其涉案金额普遍巨大,通常特别巨大,足以构成判处无期徒刑的大案、要案。现实中,此类犯罪分子如入无人之境,我国各地公安机关若坐视不理,以各种理由不予以侦办,有损法律尊严和司法主权。


On-site complaint and internet complaint are both fruitless, leading to the conclusion that these two categories of transnational fraud are condoned in the territory of mainland China and are going rampant. These cases, generally involving amounts reaching “huge” or “especially huge”, are enough to be deemed as “big cases” or “major cases” to which sentences of life imprisonment are to be meted out. In reality the fact that the fraudsters encounter little resistance from Chinese police, whose task forces at various local levels even shirk their duties with various excuses, will surely damage the dignity of our country’s laws and judicial sovereignty.


附相关法律规定

Relevant law articles


中华人民共和国刑法

CRIMINAL LAW OF THE PEOPLE'S REPUBLIC OF CHINA


第二条 中华人民共和国刑法的任务,是用刑罚同一切犯罪行为作斗争,以保卫国家安全,保卫人民民主专政的政权和社会主义制度,保护国有财产和劳动群众集体所有的财产,保护公民私人所有的财产,保护公民的人身权利、民主权利和其他权利,维护社会秩序、经济秩序,保障社会主义建设事业的顺利进行。


Article 2 The aim of the Criminal Law of the People's Republic of China is to use criminal punishments to fight against all criminal acts in order to safeguard security of the State, to defend the State power of the people's democratic dictatorship and the socialist system, to protect property owned by the State, and property collectively owned by the working people and property privately owned by citizens, to protect citizens' rights of the person and their democratic and other rights, to maintain public and economic order, and to ensure the smooth progress of socialist construction.


第六条 凡在中华人民共和国领域内犯罪的,除法律有特别规定的以外,都适用本法。


Article 6 This Law shall be applicable to anyone who commits a crime within the territory and territorial waters and space of the People's Republic of China, except as otherwise specifically provided by law.


凡在中华人民共和国船舶或者航空器内犯罪的,也适用本法。


This Law shall also be applicable to anyone who commits a crime on board a ship or aircraft of the People's Republic of China.


犯罪的行为或者结果有一项发生在中华人民共和国领域内的,就认为是在中华人民共和国领域内犯罪。


If a criminal act or its consequence takes place within the territory or territorial waters or space of the People's Republic of China, the crime shall be deemed to have been committed within the territory and territorial waters and space of the People's Republic of China.


第二百六十六条 诈骗公私财物,数额较大的,处三年以下有期徒刑、拘役或者管制,并处或者单处罚金;数额巨大或者有其他严重情节的,处三年以上十年以下有期徒刑,并处罚金;数额特别巨大或者有其他特别严重情节的,处十年以上有期徒刑或者无期徒刑,并处罚金或者没收财产。本法另有规定的,依照规定。


Article 266 Whoever swindles public or private money or property, if the amount is relatively large, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance and shall also, or shall only, be fined; if the amount is huge, or if there are other serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined; if the amount is especially huge, or if there are other especially serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment and shall also be fined or be sentenced to confiscation of property, except as otherwise specifically provided in this Law.