| In the context of the new era of information networks,although the new network technology network not only brings easement to the public,it also provides more chances for crimes for some network activists objectively.Complicity behavior of cybercrime is compared with traditional crime accomplice behavior.The openness,convenience,virtuality and other characteristics of the network itself lead to the obvious enhancement of the independence and social harm of the subjective and objective aspects of cybercrime accomplice behavior.In order to solve this dilemma,criminal legislation and judicial interpretation have adopted a regulatory model that the regarding complicity as principal offender in the field of cyber accomplices.Legislators passed the Criminal Law Amendment to add two specific crimes:the crime of illegal intrusion,illegal control of computer information system programs,tools,and the crime of helping information cybercrime activities.And in the judicial interpretation,the complicity of some types of network crimes has been interpreted as principal offender,thus affirming the inputability model of the regarding cybercrime complicity as principal offender and then triggering the discussion about it in the criminal law academic circle.There are many problems in the theory of criminal law and judicial practice with this model,the academic circles have different views on its theoretical basis.Through the use of research methods such as consulting and analyzing relevant literature,comparing domestic and foreign theoretical research,and analyzing relevant legal norms and systems,the following conclusions are drawn.In terms of legislative system,regarding cybercrime complicity as principal offender conforms to the theory of limited principal offender under the mode of distinction system,and from the perspective of context,there is a distinction between accomplice and principal,and according to the concept of limited principal under the distinction system,the person who implements the behavior specified in the specific provisions of criminal law is the principal offender.In terms of the theory of distinguishing between principal offender and accomplice,the cybercrime accomplice has actually played a dominant role in the crime,reaching the degree of harm required by principal offender,and thus being regarded as principal offender,which accords with the theory of crime domination in the substantive objective theory.In terms of the nature of illegality of cybercrime complicity,under the guidance of binary behavior without value theory,the problem of illegality is viewed from the two perspectives of behavior and result.The cybercrime complicity causes objective harmful results,has certain independent illegality,and is included in the separate criminal law regulation.Judging from the nature of this fictitious charge of the crime of helping information cybercrime,the crime is to penalize punishable cyber-help behavior through criminal legislation,and it is belonging to the complete Principal Offender.Meanwhile,based on the analysis of the necessity of regarding cybercrime accomplice as principal offender and combing the legislative and Judicial interpretation paths,it is not difficult to find that the regarding cybercrime accomplice as principal offender in legislation and applicable standards has still some problems,such as:the application of specific crimes of accomplices in cybercrime is blurred with traditional crimes,the predicament of the incompatibility of crimes,responsibilities and punishments has not been resolved,and the scope of "knowingly" in the subjective aspects of crimes is difficult to grasp and objective.On the aspect of "serious circumstances",the criteria for the conviction elements are not clear,and the net neutral help behavior is punishable and applicable at will.In view of the problems existing in regarding cybercrime complicity as principal offender of the above cybercrimes,it is an inevitable choice to perfect criminal legislation and judicial interpretation.Emphasis is paid to the coordination and application of the crime of fictitious charges and traditional charges.It is necessary to increase the statutory punishment for specific crimes,set different ranges of sentencing,and increase the types of penalties,so as to truly achieve punishment as a crime,and adhere to the principle of equivalent crimes and punishments.Perfecting the application of the standard of conviction and sentencing elements for the regarding cybercrime complicity as principal offender.The object of "knowing",that is,the word "crime",expands the interpretation,widens the scope of sanction,and makes up the blank of criminal sanction.At the same time,the degree of "knowing" is narrowed to explain,"knowing" can only be regarded as "clearly knowing",excluding the two mental states of "may know" and "should know",to prevent excessive punishment of criminal law.And setting a unified standard of the conduct and results for the element of "serious circumstances" and improving quantitative standards,so that the provisions can be better applied to guide judicial practice.And pay attention to the network neutrality help behavior punishable limited application.The help behavior of network neutrality is judged comprehensively according to the criteria of subjective and objective elements.Adhere to the modesty of criminal law,and ensures the value balance between the risk control of network crime and the innovation and development of network. |
