| The widespread availability and rapid development of the Internet have brought great convenience to people.However,to some extent,such advancement has also become a breeding ground for the perniciousness of crimes to go unchecked.What’s followed is the“neutral” technical service offered by the network service provider,which to a certain degree has improved the Internet user’s experience,yet at the same time,been taken illegal advantage by criminals so as to obtain the “key” to cybercrimes.Neural network assisting behaviour is not only notably characterized by its neutral aiding act,but also by its particular traits,so much so that it has led to newly-emerged problems and challenges in related research.Cybercrimes are usually featured by their covert offence means,rapid spread and a large number of victims.Therefore,due to the difficulty in detection,the harm caused by it is far greater than ordinary crimes.Besides,the proposal of technology neutrality has made the judgement of the punishability of neutral network assisting behaviour a tricky issue.As a result,when exploring the answers to questions such as“How to keep a balance between the maintenance of network security and the insurance of online freedom” and “How to ensure the relative stability of network-based technological development and online order maintenance”,the necessity of carrying out the research concerning the punishability of neutral network assisting behaviour is thus manifested.Apart from the abstract and conclusion,this paper can be divided into the following four parts.The first part is about the controversy over the definition of neutral network assisting behaviour and its punishability.Given that the neutral network assisting behaviour is a derivative of the neutral assisting behaviour amid the Internet age,this paper first defines the notion of neutral assisting behaviour.Then it turns to the definition of neutral network assisting behaviour.Similar to neutral assisting behaviour,the neutral network assisting behaviour is also characterized by neutrality,daily behaviours,seemingly harmlessness and so on.Its specialness lies in its appliance to Internet technologies and the impact it has on cyberspace.There are mainly two opinions regarding the judgement of the punishability of neutral network assisting behaviour.The first one advocates comprehensive punishment,i.e.,the providence of assistance at any range is subject to punishment.The second one upholds restrictive punishment,which intends to find the optimal balance between cracking down on crimes and guaranteeing civil liberty.In this theory,certain restrictions are placed on the punishment of neutral assistance behaviours.Basically,there are three kinds of ideas concerning restrictive punishment,namely “subjective theory” “objective theory”and “comprehensive theory”.The second part deals with the theoretical basis and case study of the punishability of the neutral network assisting behaviour.To cope with the neutral network assisting behaviour,the criminal punishment should neither be a blind one-size-fits-all reaction nor be too loose in regulation.In terms of the theoretical basis,this paper intends to expound on the theoretical basis of the neutral network assisting behaviour from the perspective of the modesty principle of criminal law,the boundary limitations of technology neutrality,and the pursuit of a balance between network security maintenance and network freedom protection.As for the case study,this paper selects five typical cases from judicial practice and sorts out the judges’ viewpoints,so as to reflect upon the punishability of the above-mentioned cases.By sorting out those cases,the author of this paper discovers that there is a clear tendency in China to classify the neutral network assisting behaviour into a type of crime,which is a manifestation that the legislation system and judicial practice in our country are intensifying the cracking down on cybercrimes and the stringent attitude towards the comprehensive punishment of neutral network assisting behaviour.The author of this paper believes that methods should be sought in order to keep a balance between innovating information technology and maintaining a safe Internet order.Moreover,proper regulation of the punishability of the neutral network assisting behaviour is also required.The third part relates to the criteria for determining the punishability of the neutral network assisting behaviour.By examining the judicial practices regarding the neutral network-assisting behaviour,this paper reaches the conclusion that our country has moved a step further to narrow the space between the incrimination and exoneration of neutral network-assisting behaviour.Meanwhile,bafflement remains regarding the incrimination and exculpation in this field.First of all,the increased harmfulness makes it hard to evaluate crime and punishment.The enhanced independence and the weakening of criminal intent communication lead to confusion in subordinate attributes and difficulties in criminal attribution,respectively.Secondly,the original evaluation system might cause difficulty and confusion in the exoneration of crimes since it may not be possible to evaluate each subject for the commission of crimes separately.Moreover,this paper has also established criminalization criteria for the neutral network assisting behaviour from both the subjective and objective aspects,as well as the exoneration criteria according to whether the neutral network assisting behaviour caused risks forbidden by law,whether it leads to consequences that infringe upon legal interests and whether it is within the regulated protection aims.The fourth part is about the limitation of the punishability of the neutral network assisting behaviour.Combining the relevant characteristics of the network domain,this paper discusses the limitation of the punishability of the neutral network assisting behaviour from both objective and subjective perspectives.Based on the new articles set for cybercrimes in Amendment(IX)to the Criminal Law of the People’s Republic of China and the analysis and summary of real cases,this part of the paper is devoted to the limitation of the punishability of the neutral network assisting behaviour,including the deduction of objective imputation theory,the legislative breakthrough made in the conviction of “serious circumstances”,the inspection of the subject’s obligations and the criticism and reshaping of the “knowledge” standard. |
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