Research On Aiding Offences Of Cybercrime

Aiding offences of cybercrime refers to the criminal form,which intentionally provides help for others to commit cyber crimes and should be investigated for criminal responsibility.Aiding offences of cybercrime has become the main driver of the surge of cyber crimes in today’s world,and is therefore the focus of punishment in the criminal laws of various countries and regions in the world.In terms of aiding offences of cybercrime legislation,different countries have different legislative examples,some countries and regions rely on the legislation of accomplice in the general provisions of criminal law to regulate,and some countries and regions directly set up independent crimes through specific provisions to regulate.Our country has adopted the above-mentioned two paths to regulate aiding offences of cybercrime.In the field of aiding offences of cybercrime,our country has achieved undoubtable achievements in the criminal policy,criminal law legislation and criminal justice,but there is still a lot to be improved.This paper uses literature research,empirical analysis,comparative research and other research methods to carry out legal doctrinal analysis on a series of related issues such as the objective and subjective elements of aiding offences of cybercrime punishment,so as to strengthen the research on aiding offences of cybercrime,solve the judicial application problems of aiding offences of cybercrime and broaden the research vision of aiding offences of cybercrime.Aiding offences of cybercrime needs to exist on the ground of cybercrime.There are great differences on the definition of cybercrime.Most of the arguments in the past are among the object of crime,the tool of crime or the space of crime.It is necessary to jump out of the argument that which are mechanically opposed to each other,and re-clarify the relationships between the three statements.This paper proposes to regenerate the relevant debates into monistic theory,dualistic theory and triadic theory,which arbitrarily choose one;two or three features of crime object theory,crime tool theory and crime space theory as the basis for defining cybercrime.The core reason for the divergence is the overreliance on the main characteristics of cybercrime in different periods.In fact,the crime space theory could illuminate the crime object theory and the crime tool theory independently.The establishment of aiding offences of cybercrime is based on the necessary condition that the behavior of the assisted person commits cybercrime,and the assisted person commits cybercrime as long as part of the crime or part of the result of the crime occurs in cyberspace.Therefore,aiding offences of cybercrime refers to the criminal form of accomplice or unilateral assistance intended to provide help for the preparation,execution,organization,or instigation of some of the acts that occur in cyberspace,or for some of the results that actually occur,some of the results that are expected to occur,and some of the results of the crime that may occur in cyberspace when the crime is completed.The types of aiding offences of cybercrime include:the situation in which the cyberspace is the object of crime to provide help,the situation in which the network is the tool of crime to provide help,and the situation in which the network is the space of crime to provide help.Compared with the traditional aider,aiding offences of cybercrime has obvious characteristics of alienation,which brings new challenges to criminal law theory,criminal policy,criminal law legislation and criminal justice.A more deep analysis is the starting point to explore the coping strategies.The alienation characteristics of aiding offences of cybercrime are mainly manifested in the following aspects: First,the alienation of the help mode,which is,the "one-to-one" help mode in the traditional crime is transformed into "one-to-many",and some of the appearance of the help behavior of cybercrime has the characteristics of neutrality,which make people doubt the rationality,legitimacy and necessity of its punishment.Second,the alienation of social harm,which is,from the traditional role of helping criminals in the process of crime can only play an auxiliary role to the main role,and through the "one-to-many" help mode to achieve the aggregation of harm results,resulting in a sharp increase in the social harm of aiding offences of cybercrime.Third,the alienation of the subjective aspect,which is,the two-way communication between the principal offender and the assisting offender in the traditional crime has changed to the one-way communication between the assisting offenders.Moreover,the principal offender’s behavior among the understanding of aiding offences of cybercrime has become increasingly vague and can only have a general understanding.Fourth,the alienation of the essential attribute,from the accessory attribute to the duality,that is,aiding offences of cybercrime has a certain degree of relative independence while having the accessory attribute to the principal,and aiding offences of cybercrime also changes from the limiting accessory attribute to the minimum accessory attribute in the degree of subordination to the principal.In the face of the alienation of aiding offences of cybercrime,the legislative department of various countries and regions have actively taken actions to deal with,but they have adopted different legislative examples in criminal law legislation,showing different regulatory paths:some countries still adhere to the way of traditional complicity theory,and punish aiding offences of cybercrime by expanding the interpretation of the method of "treating the principal crime as an accomplice";some countries take the path of making part of the help act as an independent crime,"punish the principal offender of an independent crime" to punish aiding offences of cybercrime.Our country has taken a different way from the above approaches: on the one hand,we have taken the path of making all helping acts as independent crimes,and punished aiding offences of cybercrime as the principal offender of independent crimes;on the other hand,aiding offences of cybercrime should be punished according to the path of traditional accomplice theory,which is "to punish the accomplice of the principal crime".When the two regulatory paths are concurred,they should be punished from a felony according to the path with a heavier penalty.For the mode of "punish the principal offender of independent crime" belongs to the criminalization of helping behavior,the emergence of this legislative mode is reasonable: First,the lack of principal offender leads to the practical need of the difficulty of attributing responsibility;Second,subjective alienation leads to the objective need of responsibility dilemma;Third,the need to implement the policy of "hitting early and hitting small" in cybercrime;Fourth,the actual need of saving judicial resources to avoid waste.The objective conditions for the establishment of aiding offences of cybercrime should have cyber aiding behavior.Cyber aiding behavior is different from cyber executing behavior and cyber abetting behavior.We should adhere to the normative form and objectively distinguish the cyber aiding behavior from the cyber executing behavior.The formal objective theory can not only provide a relatively clear standard for the distinction between the cyber aiding behavior and the cyber executing behavior,but also fit perfectly with the double classification method of the joint criminal in our country.As for the distinction between cyber aiding behavior and cyber abetting behavior,we should examine the subjective aspect of the object in a specific case.Cyber abetting behavior is the process of making a person who has no intention to commit a crime,while cyber aiding behavior is the process of making the perpetrator commits a crime.For the existence time of cyber aiding behavior,it can be either pre-network cyber aiding or in-process cyber aiding behavior.Only when the helper and the assisted have pre-collusion,can the post-network aiding behavior be established.In the case of no collusion or intentional contact in advance,the act of providing cyber aiding after the event has special provisions in the legislation;it should be punished in accordance with the charges of covering up and concealing the offense of the crime.There is a special type of cyber aiding behavior,that is,net neutrality aiding behavior.Firstly,the value and significance of cyber neutrality assistance should be fully affirmed in the legislation.The cyber neutrality assistance can provide a way to punish the excessive expansion of the scope of the attack caused by the non-standardized elements of the cyber assistance,so as to ensure the modesty of the criminal law.Secondly,whether it is net neutrality aiding behavior should be judged by combining objective neutrality and subjective neutrality.The judgment basis of objective neutrality is whether the cyber aiding behavior creates a danger which is not allowed by the law.Surely,any act of assistance will increase the risk of crime to some extent,and this danger points to the danger of infringement of legal interests by the constitutive acts carried out by the principal,rather than any danger unrelated to the constitutive elements.As for the judgment basis of subjective neutrality,on the one hand,it is the possibility of the aider’s cognition of whether the cyber aiding is illegal.On the other hand,whether the aider does not implement the aiding behavior has the possibility of expectation.Only by adhering to the standard of combining objective neutrality with subjective neutrality can those daily,operational net neutrality assistance activities be effectively excluded from crime.Research on aiding offences of cybercrime should be set up with cyber aiding intent.Because research on aiding offences of cybercrime includes not only the aiding offender in the sense of accomplice,but also the aiding offender in the sense of non-accomplice.In view of these two different situations,they also differ in the cognitive factors of cyber aiding intent.First,when there is a one-way cyber aiding intention,the aider should have the possibility of illegal understanding of their own aiding behavior,and at the same time have a knowledge of the criminal illegality of the behavior carried out by the aider,and the degree of awareness of the aider who "knows" others to carry out information cybercrimes should be treated differently according to different situations: when the help mode is "one to one",the helper needs to know that others will commit information cybercrimes,but no need to know the specific way of behavior and specific charges.When the help mode is "one-to-many",the helper only needs to have the possibility of understanding,without reaching the exact degree,which is,as long as he knows that others will use the aiding behavior provided,may commit related cyber crimes,without having a specific understanding of the means,content,object and result of cyber crimes.Second,when there is an accomplice’s cyber aiding intention,there should be a two-way communication between the co-criminals,which includes the express way,the implied way and the tacit way.Through two-way communication,each co-offender not only realizes that he is committing a crime,but also realizes that he is cooperating with others to complete the crime,and each co-offender not only has an understanding of the result of his own behavior,but also has a certain degree of understanding that the behavior of other co-criminals will produce a certain criminal result.After the establishment of a joint crime,the criminal responsibility of each joint criminal is determined according to the principle of "full responsibility for part of the act".However,when the assisted person commits an act beyond the scope of the joint criminal intent,the principle of "he who commits the act is responsible" shall be dealt with.There are still deficiencies in the criminal law regulation of aiding offences of cybercrime,which needs to be improved from three aspects: criminal policy,criminal law legislation and criminal justice.First of all,as far as the improvement of criminal policy is concerned,on the one hand,the tendency of one-sided strictness should be corrected and leniency should be emphasized.On the other hand,we should correct the tendency of one-sided leniency and focus on applying strict measures to help leniency.Secondly,as far as the improvement of criminal legislation is concerned,one is to integrate the contents of Article 285 paragraph 3 and Article286 paragraph 3 of the criminal law,and add relevant contents to it to form an independent law,and effectively make up for the omissions in the scope of punishment;The second is to add a new statutory penalty range in Article 287 bis of the Criminal Law to further enhance the legal deterrent effect of the crime on potential criminals,which is conducive to the flexible application of judicial officials in individual cases;The third is to set up special provisions for the prohibition of information cybercrimes,increase the illegal cost of implementing cybercrimes,and realize the general prevention and special prevention of criminal law;The fourth is to add the net neutrality aiding behavior as an independent legitimate behavior type,so as to avoid criminalizing a large number of neutral cyber aiding behaviors in practice,which will bring obstacles to the development and innovation of network technology.Finally,as far as the improvement of criminal justice is concerned,the first is to set up the correct judicial concept of combining leniency with severity,and realize the strictness and leniency;The second is to improve the content of the relevant judicial interpretation,and propose a new judicial interpretation to further refine the applicable standards of the crime of assisting information cybercrime activities;The third is to give full play to the function of the case guidance system to provide an important reference for the unification of judicial application standards in practice;The fourth is to control the risk of minor crimes that help information cybercrime activities,it is suggested to strengthen prosecutorial supervision to avoid cases being downgraded,and urge the investigation organs to focus on cracking down on aiding offences of cybercrime related crimes;The fifth is to formulate sentencing guidelines to help the crime of information cybercrime,providing an important basis for standardizing sentencing standards in practice.