Discussion On Crime Of Helping Network Criminal Activities

"Criminal Law Amendment(9)" added Article 287 bis of the Criminal Law,that is,the crime of helping information network criminal activities.The addition of this crime has triggered a fierce debate in the academic circles on the legislative positioning and related constituent elements of this crime.Although there have been many discussions about the nature and judicial application of this crime,there are still some difficult problems that have not yet been clarified.In view of this,this article attempts to sort out the relevant controversial theories,first clarify the legislative positioning of this crime,clarify the basic connotation of this crime,and then present and solve the problems encountered in the application of this crime through judicial practice Dilemmas and difficulties.The first chapter starts from the background of the establishment of this crime,and points out that this crime is established for the utilitarian purpose of combating the help behavior of cybercrime and is a legislative response to the evolution of the crime of cybercrime.Secondly,by combing and analyzing the relevant theories on the controversy of the legislative positioning of this crime,it negates the rationality of the "sentencing rule theory" and the "subordinate offender theory",and points out the inadequacies of the relevant discussions on helping to commit the offense.The conclusion that crime is a special help behavior is being criminalized.The second chapter firstly explores the connotation of the independent legal interest of this crime,and points out that the legal interest protected by this crime is the information network security order.Secondly,it expounds the lawlessness and responsibility of this crime.The guilty provisions of this crime with insufficientclarity make this crime a dilemma for unlawful measurement,but attempts to restrict the types of help behaviors to strengthen the practice of stereotypes will improperly narrow the scope of this crime.There is a difference between the intentional content of this crime and the content of the cybercrime help criminals’ intentional help.The third chapter analyzes the judgment documents of this crime by means of empirical research,and presents a more complete picture of the judicial application of this crime.From a macro perspective: the application rate of this crime is not high in judicial practice,and the effect of this crime is not good.From a meso-level perspective: cybercrime assistance behaviors present different types of crime formation in judicial practice,and the reasons for judging the types of crime formation are diverse and controversial.From a micro level,the "knowingly" in the composition requirements determine that there is a certain dilemma,and the serious type of the situation is only the "single amount of crime" mode.In judicial practice,the responsibility of accomplices is usually heavier than the responsibility of the principal offenders of this crime.At the same time,there are a large number of cases of abandoning the evaluation mode of accomplices and punishing only according to this crime.The fourth chapter combines the new judicial interpretation of this crime to analyze the specific problems of this crime in judicial application.The understanding of "crime" in the guilt is related to the scope of the punishment of this crime.The academic circles have made different interpretations based on human rights protection and criminal punishment.The "Interpretation" plan takes into account both theory and practice,and reasonably defines the scope of the punishment for this crime.Whether "knowledge" includes "may know" cannot be generalized.It should be understood that it belongs to the subordinate concept of knowing,which is the proof or presumption of knowing.In the "knowledge" presumption situation stipulated in the "Interpretation",there is a situation in which individual items have a large logical jump between facts,and it is necessary to pay attention to whether the opposite evidence exists.The ambiguity of the "serious circumstances" rule has led to the uncertainty of the scope of the punishment for this crime.The introduction of the "Interpretation" can provide a relatively certain measure of the crime for the crime,but some of the provisions may have difficulties in application.The provisions of this crime may lead to the full punishability of neutral help behaviors in cyberspace.Through combing the doctrine of neutral help behaviors,the limitation punishmentpath determined in this article is as follows: whether cyber help behaviors produce "laws do not allow risk" as the core To judge the way,make specific judgments with reference to standards such as "conformity of professional standards" and "rules of customary conduct".