| The crime of assisting the information cybercrime is an additional crime in the Amendment(IX)to the Criminal Law.With the increase of judicial cases related to this crime,many problems need to be solved in the judicial determination of this crime.On the basis of empirical analysis,this paper sorts out the disputes about the judicial determination of this crime,as well as combined with the judicial interpretation issued in 2019 to find a solution.In view of the four problems: the uncertain judgment standard of "knowing",the different identification standard of "serious circumstances",the confusion of the principle of dealing with the coincidental Offenses,and the unclear boundary between this crime and other typical network crimes,this paper makes a concrete analysis and provide effective Suggestions.This paper holds that the connotation of "knowing" of this crime should include the true knowing and the presumptive knowing.Also,the content of "knowing" should cover the whole process of committing a crime by others,and should not include the criminal recognition of whether his(or her)actions are illegal.As for the criterion of "serious circumstances",this paper gives specific and quantitative presumptive criterion in combination with the actual behaviors in judicial cases.As for the confusion in the determination of other related principal crimes,this paper holds that it should be distinguished from the degree of "knowing" in subjective mentality and the effect of the criminal's assisted behavior.Also,the “from the old and light” principle should be correctly applied,so as to improve the frequency of application of the third paragraph of the second provision of article 287 of the criminal law in the judgment documents.As for the discrimination of other network crimes that include assisted criminal behaviors,this paper analyzes from many aspects and consider that the overlap of legal provisions of those crimes should be identified. |
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