Judicial Deviation And Its Correction Of Criminal Activities Helping For Information Network Under The Actions Of "Breaking The Cards"

The "Criminal Law Amendment(IX)" newly added the crime of assisting information network criminal activities and the specific elements.However,due to the incompleteness and fuzziness of the legal article system,such as the unclear legislative nature of the crime,the uncertainty of the constituent elements and the fuzziness of the scope of application,the criminal law theory circle in our country has always had many disputes to the crime.In the judicial practice,the application of this crime also exists a great confusion and controversy,resulting in the phenomenon of "hot discussion,cold application" since its introduction.After the Supreme People’s Court issued the "help letter crime Explanation",further clarified the applicable standards of this crime,greatly alleviated the judicial situation of "cold application",but appeared the effect of "overheating".Since the launch of the "cut off card" action,the application rate of the crime of helping information network criminal activities has risen sharply.According to the data of China Judgment Documents Network,the crime has rapidly increased from three cases in 2016 to 18,347 cases in 2021,the number of cases is too large to conduct complete statistics.The application rate of this crime because of "help letter crime explanation" issued by the third place in the country,this phenomenon is worth thinking,especially in the judicial practice there are still quite a lot of application problems.The crime of helping information network crime should be defined as the criminalization of helping behavior and its independence and participation should be complemented by judicial practice.At the illegal level,corresponding evaluation ideas should be taken: first,when the perpetrator carries out the illegal act,it may cause infringement on the legal interests of information network order in a broad sense protected by the criminal law,it should be convicted and punished with this crime;Second,if the perpetrator infringes on the relevant specific legal interests,it should consider whether he bears the liability of accomplice in the overall crime.From the perspective of functionalism,the legislative purpose of this crime has the function of supplement and correction,so as to standardize the judicial application.The subjective "knowing" that helps information network crime should include certainty and knowledge.The object of "knowing" should be the behavior that conforms to the objective elements of criminal law,that is,the doer clearly knows subjectively that the behavior he has carried out is the behavior that helps others to commit a crime.Combined with judicial practice,the rule of presumption of knowing should be affirmed,but the rule of presumption of knowing is different from inference.The result derived by the rule of thumb only has the proof standard of high probability,and cannot directly reach the proof standard beyond reasonable doubt based on the presumption.The judicial application should investigate the objective situation comprehensively,prove the establishment of "knowing knowledge" by rational person cognition beyond reasonable doubt,and avoid consequentialism.At the illegal level,there are two standards to distinguish this crime and joint crime: one is whether there is a high degree of correlation between the helping behavior and the principal behavior(that is,the participation of the helping behavior in the principal behavior);Second,we should judge whether the helping act and the principal act constitute a joint crime according to whether the legal interests infringed objectively are the same.At the level of responsibility,the identification of subjective knowledge should be the key factor to distinguish this crime from joint crime.As for the wrong application of the crime caused by the unclear distinction between the crime of "providing payment and settlement services" and the offense caused by the crime of covering up and concealing,it should be clarified from the aspects of legal interest infringement,the certainty of the transfer of funds and the role of the perpetrator in the whole crime.For the identification of "serious circumstances",it should first take the doer’s cognition of the serious consequences as the premise,then integrate the regional and cultural differences of local judicial organs,and finally take the doer’s number of help objects,the amount of payment and settlement and illegal income as the main consideration factors as the specific sentencing standard of this crime.