The Judicial Determination Of Crime Of Helping Information Cybercrime

As a new crime in the Amendment to the Criminal Law(IX),the crime of assisting the information cybercriminal activity has received wide attention and discussion from the beginning of its establishment,especially the information network community.However,the biggest controversy over this crime is that "whether the establishment of this crime has expanded the scope of penalties for criminal law",because the objective manifestations of this crime are often neutral business practices in accordance with the law.Most of Foreign criminal law academia hold the idea of not penalizing neutral business practices so easily.In contrast,China's criminal law has clearly stipulated it as an independent accusation,which seems contrary to the trend of world criminal legislation.Therefore,how to apply this crime carefully and accurately in judicial practice is particularly important.Based on the basic theory of criminal law,this article adopts the research methods of comparative analysis and induction,the combination of jurisprudence theory and judicial practice,combined with the subjective cognitive status of actors,the forms of objective behavior,the consequences of crimes,the balance of crimes and penalties and the special crimes patterns,hoping starts from these four aspects to explore the issue of judicial application of this crime.This paper is about 50000 words,which divided into four main parts:The first part is about the subjective knowledge of the crime of helping information cyber crime.Emphasizing that the perpetrator's subjective mental state is an important aspect of determining this crime and also a necessary requirement for the conviction and sentencing.Mainly starts to discuss from two aspects which are the content of knowledge and the determination of knowledge.The content of knowledge includes the behavior,the result of the hazard,and the causal relationship between the behavior and the result,in which the behavior includes the nature of the act of helping itself and the act of being helped.The result of the hazard is the fact that describe the result of the act and the criminal object,not the actual Hazardous result.The identification of knowledge starts from three aspects,which contains cognition mistake,the degree of knowledge and specific rules.It emphasizes that the knowledge of this crime should be interpreted as full awareness and constructive knowledge,besides,by referring to the rules of other legal fields to identify the perpetrator's subjective state of mind is also feasible.The second part is about the objective behavior of this crime.First of all,explaining the relationship of the helping behavior of this crime between the helping behavior of neutrality and the helping behavior in accomplice,and delineating the general scope of the discussion.Secondly,it divides the objective behavior of this crime into three aspects: providing internet connection service,providing internet platform service and providing internet content service,and analyzing the behavior of the crime in the form of different type.Finally,it is considered that the objective manifestations of this crime are different from those of the traditional accomplice and have "independence" and "serious social negative influences",which is beyond the scope of punishment of the existing accomplice system.The third part is an analysis of the elements of this crime with gravity of the circumstances.Determining the nature of this crime is a prerequisite for analyzing the gravity of the circumstances.The legislative mode of this crime belongs to the positive criminalization of helping behavior,rather than the sentencing rules of aider accessory.In the determination of this crime,it should still be determined according to the dangerous state or the result of actual harm caused by the principal offenses.The gravity of the circumstances can be found in two aspects: on the one hand,as a perspective of someone who conducted a crime by using of information networks,according to relevant laws and regulations,judicial interpretations,prosecution standards and other specific standards to identify the gravity of the circumstances;on the other hand,from the perspective of this crime,through The perpetrator's subjective viciousness,the way of behavior and the objective influence caused by it to determine.The fourth part is about the study of the attempted crime and the balance of crime and penalty.Although this crime belongs to the circumstance crime,there is also exist a form of attempted crime of this crime to satisfied the evaluation standards,which contains the time standard,subjective standard and substantive standard.In addition,the establishment of this crime will not expand the scope of penalties,on the contrary,due to the limitation of the constitutive requirement of gravity of the circumstances,the scope of the penalty for this crime will be more reasonable and effectively controllable.For the judicial application of article 3 of this crime,in conformity with this crime,while constituting an accomplice of another crime need to be integrated with the entire facts of the case,then compare the multiple charges and choose.However,for the case of complying with this crime and principal offense of another crime at the same time,it is necessary to clarify the premise that the statutory punishment for other crimes is higher than the statutory punishment for this crime.