Research On The Judicial Cognizance Of The Crime Of Helping Information Network Crime

With the emergence of "Nora case",the criminal law amendment(nine)has added "crime of helping information network criminal activities" into its twenty-ninth articles as the second part of the criminal law 287 th.It has committed the crime of information network assistance to the principal offender and committed it independently.However,the judicial interpretation of the crime has yet to be further clarified because the judicial interpretation of the crime has not yet been introduced.Especially in the objective aspect of the crime,such as the cognizance of "serious nature",causality,as well as "subjective knowledge",due to the lack of a clear standard and controversy in theoretical research,the confusion of judicial confirmation exists objectively.Based on the legislative investigation of the crime of helping information network criminal activities,the article discusses its theoretical basis,and tries to find solutions to the predicament of judicial cognizance of the crime from the objective and subjective aspects.In addition to the introduction,the article is divided into four parts,with a total of about four thousand words in the full text.Part one,an overview of the crime of helping information network criminal activities.First of all,it explains the legislative provisions of the crime and defines the related concepts."Helping information network criminal activities" means the act of helping others in the process of committing an information network crime,s thereby enabling the aided person's information network crime to be smoothly implemented.And the establishment of the crime has gone through three stages.Secondly,discussing the basis of the information network crime: helping behavior according to the concept of principal offender and accomplice limits the theory,provides a theoretical basis and explore the accomplice according to the information of network crime;helping behavior has serious social harmfulness and the type of crime and crime characteristics,existing criminal acts of complicity the legislation is according to reality.Finally,there is a debate on the nature of this clause in the criminal law.In the differences between the doctrine of sentencing and the theory of independent charges,the nature of the independent crime is more scientific.Part two,the principle of judicial identification of the crime of information network crime.In the process of judicial determination of this crime,we must always adhere to three principles: first,adhere to the principle of modesty of the criminal law to ensure the criminal supplementary intervention;second,uphold the principle of unification of subjective and objective to meet the comprehensive application of the criminal law;third,implement the principle of qualitative and quantitative unity to reflect the standardization of criminal law evaluation.Part three,the dilemma of judicial cognizance of the objective aspect of helping information network crime and its solution.The plight of the judicial determination in objective aspects of the crime lies in two aspects: one is the predicament of "serious nature",and the other is the difficulty of determining the causation.For the accurate identification of "serious nature",we must use several of methods synthetically,and adopt the dual identification mode of the harmfulness of dependent behavior itself and the behavior and consequence of the aided person,so as to realize the full evaluation of the criminal law.The reasonable determination of causality should be carried out from three dimensions: the basic orientation,the causation should be based on the constitutive facts;the theoretical level,using the theory of objective imputation theory to solve the obstacles;the technical level,the proper use of procedural strategies for correct identification of causal relationship of the crime.Part four,the dilemma of judicial cognizance of the subjective aspect of helping information network crime and its solution.The main difficulty in the subjective determination of the crime lies in the unclear definition of the time node of "knowing",the disagreement between the understanding of "knowing" object,and the obscure way of knowing it.After analysis,the time node of "knowing" should not include the stage of preparatory behavior of the aided person,its object should be generalized "crime",and the process of concrete cognizance can be identified by "red flag rule".