Research On Limited Application Of The Crime Of Helping Information Cybercrime

In recent years,the number of cases of the crime of helping information network crime surges,and the application of judicial expansion is obvious.By expanding the judicial application of this crime and expanding the scope of regulation of network help behavior,the legislative purpose of this crime to combat network crime has been realized to a certain extent.However,at present,there exists the problem of improper expansion of the judicial application of this crime,which has an adverse impact on the basic theory of criminal law and judicial practice.Therefore,in order to deal with the problems caused by the improper judicial expansion of this crime,it is necessary to explore the path of limited application of this crime,in order to balance the value of criminal law against cyber crime and human rights protection.This paper is divided into five parts to study the applicable path of this crime.The first part introduces the general situation of this crime.First,discuss the legitimacy of this crime legislation.Secondly,it analyzes the legislative nature of the crime and the theoretical disputes of the constitutive elements such as "helping behavior" and "knowing",indicating the basic position of this article.This article thinks that this crime is incomplete to help the behavior of criminalization,in the judicial application should adhere to the position of criminal law objectivism,with the basic principles of criminal law such as legality,adaptation of crime and modesty as guidance,combined with the legislative purpose of the crime,limit the constitutive elements of the crime,deal with the competition and cooperation relationship between the crime and network accomplice.Finally,analyzing the characteristics of the crime,it shows that the crime is easy to appear in the judicial application process of improper expansion,easy to fall into the predicament of "pocketing".The second part discusses the current situation and problems of judicial application of this crime.The judicial expansion of this crime is reasonable to some extent,but there are some problems,such as improperly expanding the identification scope of "helping behavior",improperly lowering the identification standard of "knowing" and improperly applying this crime before network accomplices,so it is necessary to appropriately limit the judicial application of this crime.The reasons for the improper application of this crime include the unclear penalty range of "helping behavior",the fuzzy identification standard of "knowing" and the confusion of the joint identification of this crime and the network accomplice.The third part puts forward to limit the punishment scope of the crime "helping behavior" as the path to limit the application of the crime,mainly from three aspects to expand the discussion.First of all,the types of "helping behavior" are limited to technical support,advertising promotion and payment settlement,and they are strictly distinguished.Secondly,it limits the object of "helping behavior" and excludes general network illegal behavior.Finally,the "helping behavior" is limited to the implementation stage of the helped object.The fourth part puts forward to restrict the interpretation and identification of "knowing" of this crime as the path of application of limitation.On the one hand,it limits the interpretation of "knowing",including the connotation,object and degree of understanding of "knowing".On the other hand,strictly identify "knowing",distinguish "inferential knowing" and "constructive knowing",give priority to identify "inferential knowing",and strictly define the situation of "constructive knowing".The fifth part puts forward to standardize the concurrence application of this crime and network accomplice as the path to limit and reduce the application of this crime.On the one hand,the position of preferential application of accomplice is established,the attribute of "interception" of this crime is clearly defined,the one-sided theory of accomplice is introduced and the network accomplice is identified according to the restriction attribute of accomplice.On the other hand,it is determined that the concurrence clause of this crime stipulates the imaginary concurrence relationship,and the punishment principle of "conviction and punishment with heavier punishment provisions" is applicable.