Research On The Difficulties Of The Crime Of Helping Information Network Criminal Activities

In order to adapt to the continuous development and changes of the Internet and maintain the security and order of cyberspace,the crime of helping information network criminal activities was added to the Amendment(IX)to the Criminal Law in 2015.When this crime was first established,it was rarely really applied due to the confusion and controversy in judicial practice,and the function of this crime in preventing cybercrime was not fully utilized.In 2019,the Supreme People’s Court and the Supreme People’s Procuratorate issued the Explanation on Several Issues Concerning the Application of Law in Handling Criminal Cases of Illegal Use of Information Network and Helping Information Network Criminal Activities,which explained some controversial issues of the determination of this crime,and to a certain extent alleviated the confusing situation of the determination of this crime in judicial practice,and judicial precedents of this crime have continued to soar after that.It is undeniable that there are still some controversies in academia and practice,and this paper analyzes and discusses these controversial issues in four aspects with relevant judicial precedents.The first part discusses the legal nature of this crime.Regarding the dispute over the legal nature of this crime,the relevant theories include the theory of sentencing rules,the theory of accessory principal,and the theory of helping behavior as principal.This paper believes that the legal nature of this crime belongs to the theory of helping behavior as principal.In the specific provisions of criminal law,independent charges,charges and statutory punishment have been set up,and the current judicial response mode to this is also inclined to help behavior as principal.In addition,from the perspective of the criminal constitution,it is also able to better play the role of this crime in attacking the upstream and downstream of cyber crimes.In addition,accessory,principal and principal are the classification of the doer,while helping behavior is behavior.It is not reasonable in theory to say behavior is the type of the doer.Therefore,there is a new point of view in this paper,which is to change the saying of criminalizing helping behavior into helping behavior typification.In the theory of criminal law,specific crimes are called typed behaviors,that is,the behavior of helping information network crimes is typified.In this way,the gaps in the original law are effectively filled,and the helping behavior of network crime can be fully and accurately evaluated.The objective part of this crime is analyzed.First,the act of this crime includes technical support,payment settlement,advertising settlement and other types of help.Second,through the doctrinal discussion of "aggravating circumstances",the nature of "aggravating circumstances" and the specific criteria for its application are clarified.The determination of "aggravating circumstances" can be judged from multiple perspectives,including the amount of the crime,the number of harmful acts and the harmful consequences caused by the act of assistance.The third part analyzes the subjective aspects of the crime.First,regarding the identification of the connotation of "knowing" in the indictment of this crime,this paper believes that "knowing" includes exact knowing and presumptive knowing,and "knowing" in the indictment of this crime should conform to the general cognitive standards of the society,requiring the doer to have a clear understanding of the behavior of himself and the object to be helped,but if only the understanding of "knowing" is limited to clear knowing,In reality,it may lead to criminals escape the punishment of the law,so the presumed knowledge as the exact knowledge of the supplement,to a certain extent to expand the scope of the identification of "knowing",but it is not blind and standard arbitrary inference,more in line with the purpose of the establishment of this crime.Second,for the understanding of knowing content "crime",this paper supports the theory of criminal behavior,advocating that the scope of "crime" can be appropriately expanded,as long as the assisted person has committed a criminal behavior with legal interest infringement,without the normative limitation of constitutive elements of their criminal behavior.This theory not only conforms to the public cognition,but also combines the characteristics of this crime.Apply the principle of accumulation to punish the behavior of helping network crime.Adopting this theory can better play the role of this crime.The fourth part analyzes and discusses the crime form of this crime.First of all,in view of the accomplice form of this crime,this article thinks that the crime has become an independent crime,there are aiding and abetting criminals.To establish the accomplice of this crime,the helper should objectively carry out the helping behavior and subjectively have the intention to help.In addition,there must be a causal relationship between the helper’s helping behavior and the harm result caused by the perpetrator of this crime.The abettor who establishes this crime should objectively have the act of abetting,subjectively have the intention of abetting,and there should be a causal relationship between the harm result and the act of abetting.Secondly,for the analysis of the number of crimes,this paper holds that the provision of the third section of the crime "constitute other crimes at the same time" in the criminal law refers to the same act in line with several criminal constitution,otherwise several crimes should be punished together;In addition,this regulation does not need to be interpreted restrictively,even if the statutory punishment of other crimes is lower than that of this crime,it still applies.As for whether conjunctive cooperation between this crime and other crimes belongs to imaginary conjunctive cooperation or legal conjunctive cooperation,this paper believes that there is no need to distinguish between this crime and the punishment of felony can be chosen.Finally,this paper analyzes the concurrence between this crime and the crime of fraud and the crime of illegal use of information network,and gives the author’s own views.