To Study The Judicial Application Of Information Network Criminal Activities

In recent years,with the rapid development of information network technology,information network crimes with strong concealment and operability have also appeared.Prior to the promulgation of Amendment IX to the Criminal Law,the auxiliary perpetrators of information network crimes had always been criminally liable as accomplices or auxiliary offenders,and there was no explicit provision for relying solely on them,that is,criminalizing them,which created the problem that the auxiliary acts could not be evaluated when the main acts did not constitute a crime.In view of the current situation of the spread of this crime,the crime of auxiliary information network criminal activities came into being,transforming the accomplices of the original auxiliary acts into the main criminals,realizing the effective governance and precise prevention and control of information network crimes,and playing an important role in the security of China’s public and private property and the stability of network order.However,in the process of specific application,the application of this crime has been controversial.Specific problems include: first,the phenomenon of accomplice behavior still exists,and the handling of accomplices completely relies on upper-level crimes,which further aggravates the current situation of abuse of information network crimes;Secondly,punishing neutral assistance will further expand the scope of punishment and violate the principle of criminal law restraint;Third,the determination of "knowingly" and "serious circumstances" is inconsistent,resulting in the lack of unified recognition standards by judicial organs,making it difficult to accurately understand and apply the crime,which has a certain impact on the stability of judicial order;Fourth,there is a competitive relationship between this crime and other crimes,resulting in unclear identification of the relationship between the crimes,resulting in judicial difficulties in judicial practice where different judgments in the same case arise.Make suggestions for improving the application of this crime in practice.First,adhere to the criminalization of accomplices,and separately evaluate the accomplice behavior of information network crimes from the perspective of accomplice theory;Second,refine neutral help behaviors,distinguish and evaluate harmful help behaviors from non-social harmful help behaviors,and avoid expanding the scope of punishment;Third,on the issue of "knowing",adhere to the theory of inclusion,and include "should know" into the scope of knowledge according to the subjective psychological state of the actor.On the issue of "serious circumstances",follow the principle of least subordination,and comprehensively determine the extent of the assistance effect and the actual damage caused by the act of assisting the crime;Fourth,on the issue of joint crime,we should adhere to the theory of negating restrictive interpretations,clarify the scope of this crime and other crimes,and promote the application and research of this crime so as to better promote fairness and justice.