| Competition in the field of e-commerce is increasingly fierce,giving birth to the "fake review part-time" industry.However,due to the hidden nature of the Competition in the field of e-commerce is increasingly fierce,giving birth to the "brushing part-time" industry.However,due to the hidden nature of the network itself,technical characteristics,there is no lack of life in the name of brushing job recruitment,in fact,the use of information network to set up a fraud criminal behavior.In practice,this kind of network crime mostly uses the technical means,and often has the behavior characteristics of "chain type",which often leads to many problems in the establishment of the accomplice due to the ambiguity of the intention,the difficulty in identifying the subjective knowledge and the objective,and the appearance of neutral business behavior.There are many qualitative disputes about this kind of cases in the theoretical circle.This paper will take Zhang,Tan and other cases of illegal use of information network as an example,in-depth exploration of such cases,deepen the understanding of the nature of such criminal behavior.The thesis totals over 30,000 words,In addition to the introduction,the thesis is divided into the following four parts:The first part is the basic situation of the case.First briefly introduce Zhang,Tan and other illegal use of information network case of the basic case;Secondly,the author elaborated the three parties’ different opinions on the case,that is,the defendant Zhang and Tan pushed the network recruitment information and found it contained tempting fraud elements,but they were still not deleted and removed,which objectively set up the network crime channel for others of the qualitative opinions are not unified;Finally,based on the case,the parties’ differences and relevant theories of criminal law,the thesis concludes the controversial focus of this case: what is the punishable boundary of net neutrality help behavior? What are the subjective knowing degree of the actor and its constructive factors?What is the difference between the crime of helping information network crime and the crime of fraud? What is the boundary between the crime of helping information network criminal activities and the crime of illegally using information network?The second part is legal analysis of related problems.Aiming at the focus of the above disputes,the author takes the different requirements of subjective knowing degree of eachcrime to the actor and the knowing presumption factor as the vertical line.Secondly,analyze the main and objective elements and characteristics of the crime of helping information network criminal activity and the crime of illegal use of information network involved in this case,and clarify the applicable conditions of the two crimes.Thirdly,it clarifies the boundary between the crime of helping information network crime and the crime of fraud,and clarifies the constituent elements of the crime of fraud,especially the crime of telecom fraud.Finally,it is clear about the applicable boundary between the crime of helping information network crime and the crime of illegally using information network.The third part is the analysis and conclusion of this case.On the basis of the foregoing legal analysis,this paper makes a qualitative analysis of the defendant’s behavior in this case and draws a conclusion.First of all,the defendant’s behavior is punishable by net neutrality.Subjectively,it has indirect intention,direct infringement of legal interests,and failed to maintain the network order,careful attention to the obligation;Secondly,the defendant does not constitute the crime of fraud to help.It and the crime of fraud and no collusion nor one-sided intention to contact,and the information can not be found out.The behavior of the defendant again constitutes the crime of aiding information network crime.Only after pushing the message did they realize that the message may be false and tempting and may be used by others to commit illegal and criminal acts,but they did not take positive remedial measures,which was subjectively indirect.And the behavior seriously violated the network security and management order;Finally,the defendant’s behavior does not constitute the crime of illegal use of information network.It has no direct intention,nor is it to carry out the crime for themselves to prepare.The fourth part,the research inspiration of this case.Through the above analysis,the author puts forward the following Suggestions on the qualitative problem of net neutrality help behavior of Internet service providers similar to this case,hoping to provide some reference for clarifying the nature of such cases and achieving judicial unification.Firstly,the penalty boundary of net neutrality help behavior needs to be clear.Secondly,the presumption of subjective "knowing" should be strictly examined;Finally,the crime of helping information network crime activity can properly evaluate the help behavior of network neutrality.With the increasingly diversified network technology services today,the unclear definition of business help behavior and criminal help behavior leads to the emergence ofmany neutral help behavior penalty fuzzy zone.Clearly define the penalty boundary and punishable factors of net neutrality help behavior in the letter of the law,and find the accurate way to incriminate it,which can fill the blank in the law,and avoid the penalty of net neutrality help behavior to wander in the legal edge.Standardizing the business behavior of Internet service providers can not only create a better network service environment,make the information network better serve the economic development,but also prevent part of the network crime in the preparatory stage,which is conducive to the unification of judicial practice. |
