Key defense point: Can temporary employment to commit a crime be identified as the crime of participating in a mafia-style organization?

 Author bio: Lawyer Liao Ruibin: Full-time lawyer at Guangdong Zhiming Law Firm, part-time law tutor at South China Normal University School of Law, Deputy Director of the Public Relations Committee of Shenzhen Lawyers Association, member of the Economic Crime Defense Committee of Guangdong Lawyers Association, and member of the Commercial Crime Prevention and Defense Committee of Shenzhen Lawyers Association.

As a sweeping special campaign against organized crime and local mafia-like syndicates spreads across the country, precisely targeting illegal and criminal activities by such forces has become a hot topic of discussion in legal circles, in line with the spirit of the Notice on Carrying Out the Special Campaign Against Organized Crime and Local Mafia-like Syndicates. In the organized crime cases we have handled in the past, especially those involving a large number of defendants, defense lawyers often find it difficult to succeed with a subversive argument such as “the criminal group in this case cannot be identified as a mafia-like organization.” However, if you are a criminal defense lawyer hired or invited to represent individuals involved in the case, it is not impossible to find a breakthrough and sever your client’s connection to the mafia-like organization in the case by thoroughly grasping the evidence and details.

First, it is necessary to clarify what constitutes the act of “joining” an organized criminal group of a triad nature. Simply put, joining such an organization means becoming a member of an organized criminal group of a triad nature and accepting its leadership and management. The act of joining can be further divided into “active participation” and “general participation.” According to the 2009 Summary of the Symposium on Handling Criminal Cases Involving Organized Criminal Groups of a Triad Nature (Fa [2009] No. 382), regarding the determination of active participants and other participants: “Active participants refer to criminals who accept the leadership and management of an organized criminal group of a triad nature, repeatedly and actively participate in the illegal and criminal activities of the organization, or actively participate in relatively serious criminal activities of the organization with a prominent role, as well as other criminals who play an important role in the organization, such as those specifically responsible for managing the finances, personnel, and other affairs of the organization; other participants refer to criminals other than the aforementioned organizational members who accept the leadership and management of the organized criminal group of a triad nature.” From this, we can conclude that whether active participants or other participants, both are premised on “accepting the leadership and management of an organized criminal group of a triad nature.” Whether one accepts the leadership and management of such an organization is an important basis for determining whether the act of joining an organized criminal group of a triad nature exists.

Now that we have identified the breakthrough point, it is necessary to develop it into an effective defense argument. Can a person who temporarily accepts employment to commit a crime be deemed to have joined an organized crime group of a triad nature? In my opinion, this should be analyzed under the following two circumstances:

1. In recent years, members of organized criminal syndicates are generally not recruited through customary special ceremonies or formal membership procedures. Therefore, if a hired or invited individual falls under any of the following circumstances, judicial authorities are likely to determine that the person has engaged in the act of joining an organized criminal syndicate and convict them of the crime of participating in an organized criminal syndicate: 1. The individual was invited to join the organization and reached a certain tacit understanding with the organization regarding their participation; 2. The individual voluntarily applied to join the organization and obtained approval, recognition, or tacit consent from the organization's leaders or core members; 3. Although no joining ceremony was held or membership procedures were completed, the individual participated in various illegal and criminal activities of the organization under its leadership or management; 4. The individual initially did not know they were joining a mafia-like organization, but after becoming aware of it, did not withdraw and instead continued to participate in the organization's illegal and criminal activities. In other words, if an individual meets any of the above circumstances, they will generally be deemed to have accepted the leadership and management of the organized criminal syndicate, thereby establishing the existence of an act of participation.

2. If the perpetrator merely commits illegal or criminal acts for a gang-like organization, or provides assistance, services, or acts as a show of force, because they are hired, invited, gathered, induced, or deceived, but subjectively lacks the intent to join the gang-like organization and objectively is not subject to the leadership and management of that organization, the judicial authorities will be relatively cautious in determining whether the hired or invited perpetrator constitutes the act of participating in a gang-like organization and will not convict and punish them for the crime of participating in a gang-like organization. Among these, in the case of Chen Jinbao and seven others for organizing, leading, and participating in a gang-like organization as recorded in the Criminal Trial Reference, both the first-instance and second-instance courts held that Liu Yingping and others were temporarily invited and hired to provide “nail” security and enforcers for the casino based on prison-mate emotional relationships, subjectively had no desire to join the organization, and objectively were not subject to the leadership and management constraints of the organization, ultimately determining that Liu Yingping and the seven others did not constitute the crime of participating in a gang-like organization. This is an illustrative example of the application of this view.

In summary, when we defense lawyers find it difficult to uncover sufficient subjective and objective evidence to prove that "the organization cannot be recognized as a gangland-style organization," we combine the client's actual circumstances in the case and rely on the defense point that "the actor subjectively had no desire to join the organization and objectively did not accept the leadership and management of the gangland-style organization" to sever the client's connection to the gangland-style organization. This approach often yields twice the result with half the effort.