Research On Judicial Determination Of Crime Of Helping Information Network Criminal Activities

In order to curb the increasingly severe trend of cybercrime,crack down on the upstream assistance to the black and gray industry chain of cybercrime,the criminal law amendment(9)establishes the crime of helping information network criminal activities,independently criminalizes the assistance behavior of information network crimes.In recent years,while the number of judicial cases of this crime has been continuously increasing,it also highlighted many problems in judicial identification of this crime.This paper based on empirical analysis and combined with a large number of adjudication cases to analyze the current situation and existing problems of this crime,starting from the discovered problems,discusses the definition of the nature of the crime,the identification of the elements of the crime,the handling of criminal competition,in order to provide some ideas for the standardization of the judicial identification of the crime.In addition to the introduction and conclusion,this paper has four parts:The first part selects 552 judicial cases that related to this crime from the judicial documents website,conducts empirical research on the current situation of judicial determination of this crime and presents them graphically.Through the investigation of the current situation,it is found that there are some prominent problems in the judicial identification of this crime,such as formalization of "knowing" judgment,ambiguity of "criminal" identification of the assisted object,deviation of "serious circumstances" application,and confusion in the handling of criminal competition.The second part mainly defines the normative nature of this crime,the understanding of the nature of the crime is the premise of judicial determination,by analyzing and comparing theories such as the criminalization of helping behavior,the sentencing rules of assistant offenders and the accessory to principal offender,it is conclude that the nature of this crime should be the criminalization of helping behavior,it not only has the rationality and persuasiveness of theoretical interpretation,but also conforms to the legislative regulation purpose of this crime,it is a necessary measure to deal with the continuous alienation of helping behavior in cyberspace and to remedy the regulatory loopholes of traditional accomplice theory.The third part mainly focuses on the outstanding problems found in the empirical investigation,that is the judgment of "knowing",the understanding of "crime" and the identification of "serious circumstances".First,the degree of "knowing" includes explicit knowledge and presumptive knowledge,should not include possible knowledge and should know into the category of "knowing",and combined with the judicial interpretation,analyzes the judgment standard of presumed knowledge and puts forward some suggestions for improvement;Secondly,the "crime" of the assisted object only needs to be the harmful behavior conforming to the type of behavior stipulated in the specific provisions of the criminal law,and does not need to be limited by the completeness of constitutive elements and the degree of crime,that is,the "crime" of the assisted object can be either the criminal behavior with sufficient amount,or the criminal illegal behavior that conforms to the behavior type stipulated in the specific provisions of the criminal law but has not reached the degree of crime amount;Finally,the "serious circumstances" of this crime is the condition of limiting punishment,in practice,it should be applied in accordance with the principle of strict interpretation,and combine with judicial interpretation to analyze and improve the identification of "serious circumstances".The fourth part mainly analyzes the discrimination and competitive processing of this crime and the accomplice of related crimes,the crime of illegal use of information networks,the crime of covering up or concealing the resulting of crimes based on specific cases.First of all,the key to distinguish between this crime and the accomplice of related crime is whether there is criminal intent conspiracy between the actor and the assisted object,if there is no criminal intent conspiracy between each other,but only knowing that others committed a crime to help,only guilty of this crime,if there is conspiracy of criminal intent,it becomes an accomplice in both this crime and related crimes,convicted and punished according to the heavier clause in the third paragraph of this crime;Secondly,there are differences between this crime and the crime of illegal use of information network in terms of behavior mode,behavior target and normative purpose,especially in the normative purposes,this crime is to regulate the help of cyber crime,to realize the punishment of helping behavior,however,the crime of illegal use of information network regulates the preparatory behavior of network crime,to realize punishment for preparatory actions;Finally,the identification of the behavior involved in providing bank cards,when the actor only rents or sells payment and settlement tools such as bank cards to others to help others in their crimes,it is generally only established this crime.If the actor continues to withdraw cash or transfer money in addition to providing payment and settlement tools such as bank cards,it will be convicted of this crime and the imaginative concurrence of covering up or concealing the resulting of crime,and will be punished with one felony.