The Judicial Application Of The Crime Of Helping Network Criminal Activities

At the beginning of the establishment of the crime of aiding information network crime,the application of the crime in judicial practice is not satisfactory,and the theoretical circle has many disputes on the legislative positioning and constituent elements of the crime.In 2019,,the Supreme People’s Court and the Supreme People’s Procuratorate issued relevant judicial interpretations to clarify the connotation of the constitutive elements of this crime,but there are still some difficult problems to be solved in practice.Therefor,this paper,on the basis of clarifying the legislative orientation of this crime,through the integration of relevant judgment documents,clarifies the difficulties in the judicial application of this crime,and combs out relevant dispute theories,in order to try to solve part of the difficulties in the judicial application of this crime.The first chapter,starting from the legislative background of this crime,points out that under the background of the chain of network crime,it is necessary to expand and add this crime through legislation to regulate the help behavior of network crime,so as to maintain the order of network security.Then,it sorts out the relevant theories about the legislative orientation of the limited crime,points out the legitimacy basis of the theory of "legalization of aiding and assisting",and briefly summarizes the legal consequences of legalization of aiding and assisting in conviction and identification of accomplice.The second chapter is an empirical study on the judicial application of this crime by querying a large number of judicial documents.Compared with the number of judicial documents before and after the promulgation of judicial interpretation,it can be concluded that the promulgation of relevant judicial interpretation does make this crime "active".On the whole,the forms of help provided by actors for cyber crimes show the characteristics of typification.Among them,the number of cases providing "payment and settlement" assistance is the largest,and such cases are more common in practice.At the same time,through the overall study of judgment documents,it is found that in judicial practice,there are still perplexity in the definition of constituent elements,identification of accomplice and distinction of charges.The third chapter clarifies the connotation of some difficult constitutive elements of this crime by combing relevant theories.The conclusion is drawn as follows: "crime" should include criminal illegal act besides criminal act."Knowing well" refers to the knowledge or should have known,the latter does not mean "do not know",but in combination with the facts of the case presumes that the doer knows.According to the relevant provisions of judicial interpretation,when presuming whether the doer knows or not,the doer’s own knowledge and the nature of helping behavior should be comprehensively determined.As there may be some neutrality in the appearance of "helping behavior",its scope should be carefully determined.Objectively,the behavior creates the risk that the law does not allow as the objective basis of imputation;Subjectively,we should consider the cognition factor and will factor of the perpetrator to limit the punishment scope of this crime.In addition,different actors should be distinguished.In this paper,actors are divided into natural persons with network skills,non-natural persons with network skills and network service providers to judge respectively.Finally,for the constitutive elements of "serious circumstances",the specific content of <Information Network Crime Interpretation> should be considered.The fourth chapter mainly discusses the applicable limits of this charge in judicial practice and joint crime and other charges.In the identification of accomplice relationship,we should distinguish whether the perpetrator is clear about the specific criminal act carried out by others.If the perpetrator knows the network crime specifically carried out by others,he may establish the accomplice of this crime and related crime at the same time;If the perpetrator knows that others commit cyber crimes,but does not know the specific behavior,he will only be judged as the crime.Second,help the behavior of this crime is easily mixed with other charges,the distinction between this crime and the crime of illegal use of information network should "be help object is embarked on Internet crime",to distinguish this crime from and hide secret of crime,crime income income sin shall be based on "whether be help network crime has already accomplished" for the boundaries.