The Punishability Of Neutral Aid

With the continuous development of industrialization and information technology,more possibilities have been provided for people’s behavior choices.In more and more individualistic social activities,the uncertainty of individual behavior has gradually increased.In addition,the progress of high and new technology industries and modern services makes the modern social system present a highly complicated state,so the risk of the whole society is also increasing,and it has entered the risk society.Such as goods sales,logistics,network services and financial services and other normal life behavior may be used by criminals,and produce the risk that the law is not allowed.This kind of behavior,which is harmless in appearance,but objectively promotes the execution of the crime or endangers the result,is usually called "neutral aid" in the criminal law circle.The special feature of neutral aid lies in its own dual attributes.On the one hand,it is reflected in its helping nature.In the whole activity link,because of the active choice of the criminal,it passively participates in the criminal activities,which indirectly or directly provides a promoting effect for the result of the infringement of legal interests,and thus has a correlation with the harm result.On the other hand,it is reflected in its neutrality,which is also the basis of the study value of the punishability of neutral aid.Because it is a kind of normal social behavior in nature,the legitimate behavior that exists in daily life or economic activities,and the independent behavior that does not depend on criminal activities,has certain social significance.At the same time,the service object of this kind of behavior is not a specific person,and the behavior is highly substitutable.Moreover,the perpetrator subjectively did not pursue the goal of the crime,only to carry out daily life needs or pursue economic interests.Therefore,it is impossible to treat the neutral helping behavior as a whole.But should carry on the all-round analysis to it according to the concrete situation,obtains the reasonable measure standard,thus carries on the restriction to its punishable scope.The discussion of neutral aid originated in Germany and has been widely discussed in Japan,which has also attracted the attention of domestic academic circles in recent years.In the discussion of its punishability,scholars at home and abroad have formed different theories from various viewpoints.Mainly have overall punishment theory and limit punishment theory.However,the overall punishment theory ignores the particularity of neutral aid and equates it to the punishable proposition of helping offense in joint crime,which unduly expands the regulation scope of criminal law.It is not conducive to the healthy and stable development of modern society and has not been supported by the criminal law circle.There are also differences on the punishable standard within the theory of limited punishment,which forms the subjective theory,the objective theory and the compromise theory.Relative to the subjective and objective measure from one aspect only,this view of combining subjective and objective judgment more in line with the unity of subjective and objective demand in our country,is also more relevant judgment of whether there is crime in the judicial practice in China.Through sorting out various theories and the legal provisions of this kind of behavior in our country,this paper puts forward the specific standard of the punishable scope of neutral aid.In the objective aspect,it mainly draws lessons from the judgment path of objective imputation theory,and determines whether there is a causal relationship from whether the risk that the law is not allowed is created and realized,and whether the result occurs within the effectiveness range of the constituent elements.In the subjective aspect,it is mainly concerned about whether the person knows clearly,that is,whether he has a clear cognition of the criminal intention or criminal fact of the object of behavior.At the same time,the doer should be aware of the inevitability that his behavior has a promoting effect on the completion of the crime.In addition,other criteria affecting the judgment are also standardized,which are the urgency of the behavior object and the subplaceability of the neutral aid.The purpose of the study of neutral aid is to solve the problem of whether such behavior can be punished in judicial practice.Therefore,this paper carries out an analysis of such common daily behaviors and non-daily behaviors in social activities,and classifies and judges them according to specific situations of specific behaviors.