Help The Information Network Crime Crime Judicial Research

The standing committee of the National People’s Congress in August 2015 to vote through the "criminal law amendment(9)," added help information network crime sin(2)in article 287 of the criminal law,namely,help information network crime crime refers to a natural person or unit knowing others committing crimes by information network,and provide Internet access for their crime,server hosting,network storage,communication transmission,such as technical support,or help such as providing advertising promotion,payment and settlement,if the circumstances are serious behavior.The establishment of this crime provides the criminal law basis for regulating the help behavior of the current network crime.However,in the judicial practice,there are problems such as the different application standards of the court charges in different regions and the disorder of the judicial concurrenction recognition standards.In view of the problems in the judicial practice of this crime,the author analyzes the subjective elements,objective elements of this crime and the comparison between this crime and that crime,and puts forward his own views on the problems in the judicial application of this crime.This paper is mainly divided into the introduction and the body,the introduction mainly introduces the background and significance of the research on the crime of helping information network crimes,relevant theories at home and abroad,as well as the research methods,ideas and innovations of this crime.Through studying the research on this crime by domestic scholars,the author has learned that the disputes over this crime mainly focus on the nature of this crime,the scope of punishment and the applicable standards for the specific constitution of the crime.The first part of the text mainly introduces the legislative conception and judicial status of the crime of information network crime.In recent years,the network crime rate is increasing year by year,and has formed the phenomenon of "one stop" with specialization and division of labor.For the policy purpose of preventing and cracking down on network crime in advance,the crime of assisting information network crime activities was added tothe amendment(ix)to the criminal law issued by China in 2015.The author consulted the judicial application of this crime from the time it was established in 2015 to 2019,and made charts to analyze the problems in the judicial application of this crime,that is,the regional application of the crime varies greatly and the standards for the recognition of the crime in the joint crime of each court are not uniform.The second part analyzes the subjective elements of this crime and focuses on the identification standards of subjective knowing and criminal intention.For the cognizance of "knowing",first for knowing the rules of the criminal law laws and regulations,is studied based on knowing the object of this crime and content analysis to define and finally it is concluded that the standard of knowing,is only in the judicial practice to determine whether a network service provider clearly know or conditional presumption is preparing committing crimes or can know each other,without having to clear the specific content and process of crime.In terms of criminal intention,the focus is to study the meaning connection from the point of view of some foreign theoretical research on the meaning connection and combined with the current situation of the use of this crime,it is concluded that even if there is no meaning connection between the accomplice and the principal offender,the accomplice can be established.The third part analyzes the objective elements of this crime,focusing on the help behavior and the serious circumstances of this crime.The identification of helping behavior is mainly studied from two aspects: the manifestation of network helping behavior and the punishable of neutral helping behavior.Through the combination of theory and practice,it is concluded that the objective elements of this crime include neutral helping behavior but need to be strictly identified.As for the standard of seriousness,this paper mainly refers to the relevant judicial interpretation of "seriousness" and formulates the standard of seriousness based on the actual situation of the crime and relevant cases.The fourth part focuses on the analysis of crime concurrence,from the theoretical explanation of "simultaneously constitute other crimes" and judicial practice.First of all,it is studied whether the "simultaneous" in "simultaneously constituting other crimes" refers to several ACTS and whether it is necessary to limit the interpretation of this article in thiscrime in terms of sentencing.Furthermore,taking the typical crime of fraud and the crime of helping information network crime as an example,this paper concludes that the determination of the crime of fraud and cooperation should be based on the condition that both parties have collusion.