A Study On The Justification Of The Principal Offense Of Network Helping Behavior

The perpetration of network assistance is not a concept in traditional criminal law theory,but a general term for a kind of legislative phenomenon in the development of criminal law research.The legislative phenomenon known as "the perpetration of Internet help" generally refers to the amendment of the criminal law that sets up an independent statutory punishment in the specific provisions of the criminal law for the help behavior that could not be convicted independently.The typical representative is the crime of helping information network criminal activities in article 287 bis of the new criminal law of the Ninth Amendment to the criminal law.Around the issue of "the perpetration of Internet help",the academic community has launched a heated discussion,of which the most intense and important is the discussion of "the legitimacy of the perpetration of Internet help".The premise of the establishment of the crime is that the provisions of the crime conform to the theoretical requirements of criminal law.While protecting the rights and interests of citizens,the rights and interests of the perpetrator should not be excessively infringed.The existence of the legitimacy of the perpetration of network help directly determines the application of specific perpetration charges in judicial practice.The legitimacy of the perpetration of Internet help mainly lies in how to understand the "perpetration of Internet help".Based on the current academic research on this issue,this paper makes a comprehensive and in-depth analysis of the connotation of "perpetration" and its research object,and then expounds the theoretical basis of its legitimacy.In addition to the introduction and conclusion,the main content of this paper is composed of the following three parts:The first part of the article is the first chapter,which mainly combs the problems related to the legitimacy of online help.This paper points out the research direction and dilemma of the topic,clarifies the concepts related to the dispute,and clarifies the connotation and legal consequences of "perpetration";it clarifies the research object of the topic,strictly distinguishes the perpetration of helping behavior and the expansion of perpetrator behavior,further clarifies the essence of "perpetration",and limits the research object of the topic to the crime of helping information network criminal activity;it expounds the academic relationship Different theories on the necessity and legitimacy of the perpetration of Internet help behavior are convenient for the following discussion.The second part of the article is the second and third chapter,which mainly criticizes the "legitimacy negation" and "legitimacy compromise".On the basis of expounding the theory of negation,this paper criticizes the "neutral helping behavior" advocated by the theory of negation.There are two modes of the existence of the principal offender,the principal offender and the non principal offender.The crime of helping information network crime belongs to the principal offender mode of the act,which is objectively illegal,and its subjective "knowing" can also show its criminal intention.In the same way,on the basis of elaborating the theory of compromise and criticizing the "risk criminal law" advocated by the theory of compromise,there is no causal relationship between the risk society and the risk criminal law,and the theory of risk society can not be used as the theoretical basis for the perpetration of network assisted behaviors.The risk criminal law itself has the factors of situation policy,and the necessity of situation policy cannot be Its theoretical basis of legitimacy.The third part of the article is the fourth,which is mainly about the elaboration and revision of the "justification affirmation",and further affirms its legitimacy in the criminal liability path.The social harmfulness of Internet help is the necessary condition for it to enter the crime,and its independent path of infringement of legal interests is the legitimate basis for it to enter the crime.Because of the mature industrial chain of network help behavior,and the universality and uncontrollability of the assisted object,the specific network help behavior has the triggering and guidance to the implementation of network crime,that is,it has the high possibility to trigger the perpetrator.This mode of infringement of legal interest is in line with the legislative mode of abstract dangerous crime,and the criminal liability path of abstract dangerous crime is in line with the theoretical requirements of criminal law.