Reflections On The Criminalization Of Assistance In Cybercrime

With the development of Internet technology,cybercrime has undergone a process of transformation from object,tool to space.The arrival of the Internet era has accelerated the formation of cyberspace.It forms a new social pattern of double layers with the real space.Traditional crime has found a new breeding ground.Internet crime shows a high and frequent trend.Because of the technical characteristics of cybercrime,it is more covert and complex than traditional crime,which constantly impacts the traditional criminal law theory.Among them,the regulation of the assistant behavior of cybercrime is the most prominent one.With the help of the technical characteristics of the network,the help behavior of the network crime presents a highly evolutionary and deformed phenomenon: the social harmfulness of the help behavior of the network crime gradually surpasses the practice behavior,impacting on the traditional evaluation model of accomplices;the independence of the help behavior of the network crime breaks through the subordinate nature of accomplices and shakes the traditional evaluation system of accomplices.Faced with the evolution and distortion of the assistant behavior of cybercrime and the weak response of traditional accomplice theory,criminal legislation and criminal justice take active measures to build a preliminary regulatory system.Criminal justice takes the lead in bringing its initiative into full play,confirming the existence of one-sided accomplice in the interpretation,and further clarifying the restrictive conditions for the application of one-sided accomplice.Following this,criminal legislation enacted special charges to regulate cybercrime through amendments.The Criminal Law Amendment(7)added the crime of providing intrusion,illegal control of computer information system procedures and tools,which was the first Legislativebreakthrough against cybercrime assistance.The Criminal Law Amendment(9)helped the new establishment of cybercrime crime.It also declares the arrival of the era of "criminalization of assistant acts of cybercrime".The establishment of the criminalization of assistant acts of cybercrime in legislation alleviates the impact of the evolution and transformation of assistant acts of cybercrime on the theory of accomplice in criminal law to a certain extent.However,its lack of in-depth theoretical discussion and indigenization is the result of improper use for reference of foreign criminal law theory.That is to say,the distinction between principal offender and accomplice exists only under the concept of "limited principal offender".Its essence is the different interpretation of the conformity of the constituent elements.In order to achieve a balanced sentencing,the concept of substantive principal offender-assisted principal offender is developed.The legislative paradigm of "helping the principal offender" does not correspond to the legislative style of "role-division of labor" in our country.According to the classification of division of labor,our criminal law divides the accomplice into principal offender,organizer,abettor and assistant offender.At the same time,it further divides the accomplice into principal offender,accessory offender and coerced accomplice according to the criterion of function-the first level stereotype,the second level quantification,and guarantees the balance of sentencing.The perpetration of assistant acts in cybercrime is a misuse of the theory of substantive principal offenders,which subverts the theoretical foundation of accomplices in China,weakens the types of accomplices participating in cybercrime,indirectly expands the scope of cybercrime and vacancies of the provisions on accomplices in the general provisions of criminal law.This is not a proper law to resolve the predicament of imputation of accomplices in cybercrime.At present,we should base ourselves on the legislative model of accomplice in our country,establish a system of imputation which conforms to the double-level classification standard of accomplice,adopt the theory of minimum subordination to bridge the gap between accomplice and principal offender,introduce one-sided accomplice to eliminate the obstacle of lack of criminal intention connection,and then realize the rational return of imputation model of cyber crime accomplice.With the help of the new model of accomplice imputation,the typical legislative example of helping criminals to commit cyber crimes,which is known as helping criminals to commit cyber crimes,should be authentically clarified.Its normativeattribute is neither the sentencing rules nor the principal accomplice,but the result of the legislative promotion of the concept of "helping criminalization",which should not be advocated,but should be regarded as "one-sided accomplice".Legislative confirmation.In judicial practice,we should adopt the theory of minimum subordination to help the implementation of information network crime.If the circumstances are serious,we should punish the crime according to the principle of imaginative concurrence and choose a felony punishment according to the principle of imaginative concurrence.