Research On Knotty Problems Of Crime Of Helping Information Network Criminal Activities

In 2015,the Amendment(IX)in the Criminal Law didn’t explain the nature of this kind of behavior at the beginning of adding the crime of helping information network crime.The disputes among three major theories are caused by the previous legislative model that criminalized network-technology-assisted behavior,which only had instrumental attributes.At present,the view of helping the conduct be criminalized has been generally recognized by the judicial practice circle.The judicial interpretation jointly issued by the two high schools provides strong guidance for the judicial application of this crime.This paper selects the most common predicate crime of this crime-telecommunication network fraud as an angle,and on the basis of studying typical judicial cases,sorts out the non-uniform determination standards for the existence of this crime’s constituent elements,the blurred boundary of punishment for neutral helping behaviors,and the existence of co-existence of criminals differences,etc.In order to unify the judicial application norms of this crime,this paper puts forward suggestions for the above problems one by one.In terms of subjective determination,if the perpetrator knows that others have committed or may commit information network crimes,including knowing and presuming that there is evidence,the judicial organ should not arbitrarily lower the subjective determination standard in order to alleviate the difficulty of evidence proof.The "crime" committed by the person being helped should be interpreted as a crime in the sense of illegality,as a bottom line when the actual crime cannot be verified objectively.In terms of objective determination,the application standards for the judicial interpretation of "serious circumstances" should be refined to prevent judicial abuse;this crime is a circumstance crime,and it is clear that there is no attempted crime;the boundary for the determination of minor criminal circumstances should be reasonably divided to ensure that the culpability and punishment are appropriate.In order to balance the relationship between the development of network technology and the fight against crime,the "should know" of neutral helpers should be limited to relatively specific cognition and examined whether they have fulfilled their reasonable prevention obligations,thereby limiting the scope of punishment for neutral help behaviors.When dealing with co-occurrence of crimes,it is clarified that this crime and related crimes are convicted of imaginary competition and cooperation,the principle of respecting the old and taking the lighter is correctly applied.