Study On Judicial Application Of Help Information Network Criminal Activity Crime

Network society has become an important part of modern society,and the network is closely related to people’s life.Throughout the history of the development of human society,the relationship between information network and human society is interdependent and obviously contradictory.the development of information network makes the civilization of human society further and plays a positive role in human society.But at the same time,the information network itself contains many risks.Irrational use of the information network may bring irrational results,which may dilute the significance and value brought by the development of the network.Under the background of the information and network age,people not only enjoy the benefits brought by the network but also face complex security risks.Network has a strong complexity,concealment,but also brought great challenges to the judicial practice.Opportunities are often accompanied by risks.To develop and make progress,we must face up to these challenges.In order to better regulate the network environment and promote the better and safer development of the network society,It is necessary to help the establishment of the crime of information network crime.However,this crime has been controversial since its application.First of all,in the theoretical level,there are the theory of legalization of aiding behavior,the theory of sentencing rules,the theory of legalization of neutral aiding behavior,the theory of accomplice and principal offender,and the theory of cumulative offender.The disunity at the theoretical level is bound to cause confusion in the practice.Courts in different areas have different choices on the application of the theory in the process of adjudication,resulting in the situation of "different judgments for the same case".Therefore,it is urgent to have a unified voice on academic disputes to provide clear guidance for the judicial practice.Furthermore,the identification of "knowing well" in the subjective elements of this crime should not be vague as the necessary conditions for incrimination,and there should be clearer provisions on the identification and interpretation of "knowing well".Secondly,there is no proper interpretation of the concept of "serious".Should the actor providing help reach the level of "serious" or the actor receiving help reach the level of "serious" ? In addition,in the application of this crime,it is inevitable to concur with other charges,such as fraud,illegal use of information network crime.Because the judicial interpretation of the charges of contesting and cooperation exists cross,the boundary is not clear,and this crime belongs to the crime of lesser punishment,so it often appears that this crime is reduced to the appendage of other crimes in violation of the original intention of legislation.Finally,the identification and punishment of neutral helping behavior are also very vague.If there is no clear standard,such harmless behavior may be over punished,or it may be indulged and become a tool used by criminals.In order to make this crime can be better applied in practice,these problems need to be solved urgently.In view of the above problems,this paper adopts the case study method and literature research method,taking representative cases as the starting point of the problem exploration,and leads to the problems existing in the application of this crime in judicial practice.First of all,it is clear that this crime belongs to the legalization of helping behavior and discusses its rationality.Secondly,it reinterprets the subjective knowledge,expands the interpretation should accord with the legislator’s original intention,and gives reasonable suggestions to its cognizance.As for the problem of "serious circumstances",combined with relevant judicial interpretation,this crime should conform to the pattern of cumulative conviction,and should not tangle with the behavior of receiving help.Since this kind of helping behavior has been set up an independent charge,then it can be constituted separately has its own rationality,should jump out of the traditional idea of helping crime,objective treatment of this charge.The problem of Concurrence of crime should be considered according to different circumstances.For example,it is a question of imagination,it should be based on the principle of "alternative one".If belong to law concurrence,the provisions of special law should be applied first.For the discussion of the punishment of neutral helping behavior,we should have a thorough understanding of its "punishable" and the degree of "punishable",so as to avoid "excessive punishment" and "slipping through the net".Finally,we should accurately grasp the relationship between this crime and joint crime,which is also a basic problem of this crime.