On The Application Of The Crime Of Assisting Information Network Criminal Activities

Regarding the nature of the crime of helping information network criminal activities,the current theories in the theoretical circle mainly include the theory of normalizing the crime of helpful behavior,the theory of sentencing rules,and the theory of cumulative crime.It is difficult to determine whether there is a connection of intentions between the perpetrators,and there may be situations in which the implementation of the act does not constitute a crime,but the helping act constitutes a crime,which violates the principle of commensurate with culpability and punishment.The sentencing rules say that it is impossible to solve the dilemma that in the "one-to-many" situation,the main offender does not constitute a crime,but the helping behavior seriously endangers the society.The theory of accumulative offenses is difficult to grasp the specific standards of accumulative crimes in practice.The understanding of this crime should be based on the purpose of establishing this crime,that is,to remove the dependence between the assisting behavior and the performing act,and to solve the problem in judicial practice that the assisting offender cannot be convicted and punished because the main offender of the executing act cannot be identified.In order to reasonably and effectively regulate the behaviors that support and help others to commit crimes by using information network,the crime of helping information network criminal activities is limited and explained from the perspective of constitutive elements while maintaining the modesty of criminal law and not hindering the development of network technology.The degree of guilt of knowing should be limited to knowing clearly.The "crime" should be understood from the point of view of behavioral meaning,and the provider of the behavior requesting assistance only needs to know that what he is helping is an illegal and criminal behavior evaluated by the criminal law,and that the person being helped is the executor who uses the information network to commit the crime.When it is not possible to directly determine whether the provider of the helping act is subjectively aware,a comprehensive analysis shall be carried out in strict accordance with the relevant provisions of the judicial interpretation,and the situation that the actor does not know shall be excluded.In terms of objective behavior,it should be determined strictly in accordance with the same interpretation rules to determine whether the behavior falls within the scope of the "equal" behavior in the formulation of the criminal law.Only a neutral behavior that is infringing on legal interests,reaches the level of seriousness,is included in the scope of criminal punishment,and the perpetrator is subjectively aware of it belongs to the implementation of this crime."Serious circumstances",as the objective limiting factor of this crime,is the quantitative standard for judging whether the crime is constituted or not."Three or more objects" in the relevant judicial interpretations refer to three or more perpetrators who constitute an information network crime."Payment and settlement amount" refers to the amount involved by the actor not only renting out or lending a credit card,but also cooperating with others to transfer money or withdraw cash.It is different from the "two cards" in this crime,which refers to only providing bank cards and mobile phone cards,but not participating in helping to withdraw cash."Illegal income of more than10,000 yuan" refers to all illegal or illegal money income obtained by the help provider in the process of helping others to use the information network to commit crimes.The boundary between this crime and the crime of illegal use of information network lies in that the implementation of this crime is to provide technical support and business help,and the regulation is to help behavior.The implementation of the crime of illegal use of information network is mainly to spread information,and the regulation is to prepare behavior.The difference between this crime and the crime of refusing to perform the obligation of information network security management is that the subject of this crime includes the subject of the subsequent crime,and this crime can be implemented as a way or not,and the latter crime can only be implemented as a way of omission.This crime than cover up,conceal the income of the crime,the income of the crime in the subjective degree of low requirements,this crime only requires to recognize the implementation of the criminal law charges in the objective aspect of the harmful behavior,the latter requires the perpetrator to clearly recognize the specific nature of the upstream crime.When the perpetrator commits this crime and constitutes an accomplice or principal offender of other crimes at the same time,it belongs to imaginative joinder of offenses,and shall be given a heavier punishment after comparing the legal punishment in accordance with the provisions of paragraph3,article 287 bis of the criminal law.In the case of "one-to-many",helping the behavior provider constitutes both this crime and other crimes whose statutory punishment is lower than this crime.Because the helper provides help to many people being helped,the social harm of the helping behavior exceeds the implementation behavior.It is more appropriate to regulate this crime under the guidance of the principle of adaptation of crime,responsibility and punishment.