The Basic Structure And Development Of Joint Crimes In Cyberspace

From the nature of joint crime,to the establishment of joint crime,to the sentencing of joint crime,the theory of joint crime is abstract and complex,so it is called "the chapter of despair of criminal law" by criminal law scholars.With the development of Internet technology,cybercrime has gradually extended from the real space to cyberspace.Cyberspace crime and joint crime in cyberspace have become the advanced form of cybercrime.Academic literature has studied the causes,development direction and prevention mechanism of cyber crime,but these studies are from the perspective of criminology,few scholars from the perspective of normative criminal law to analyze.With cyberspace as the background of the times or research background,the original theory of joint crime,the original theory of joint crime should be how to apply and improve,the principle behind the basic law is hidden,how to reform the law behind the methodological issues."Basic structure" is the basic principle of constitutive elements of crime,which conforms to the development trend of the characteristics of the current network era.It decides the following problems: in the study of cyberspace joint crime,how to delimit the scope of the establishment of cyberspace joint crime,establish the conditions for the establishment of joint crime,and how to divide the participants of the accomplice The role of the participants to determine the size of the criminal liability.The tone of the article is laid down as the "basic structure" for the purpose of launching other aspects after the freezing principle and methodology.The thesis is divided into seven chapters,about two hundred thousand words.The first chapter to the third chapter,mainly discusses the basic concepts of cyberspace joint crime,as well as the establishment mechanism and scope of cyberspace joint crime,with the constituent elements,especially the subjective and objective elements as the final research model.Chapters 4 to 7 mainly discuss the types of accomplice participants and criminal responsibility in cyberspace joint crime.The contents of each chapter are as follows:The first chapter mainly discusses the related concepts of cyberspace and joint crime in cyberspace.This chapter takes cyberspace as the central word,compares the concepts and connotations of other related virtual spaces,and frames the premise of the whole article.From the perspective of storage space,network social space and network platform space,this paper defines the legal attributes of cyberspace,studies the particularity of crime and joint crime in cyberspace,limits the network environment and era background in the process of discussion,and determines the era premise of alienation of joint crime in cyberspace.Finally,the paper establishes the concept and types of cyberspace joint crime,discusses the phenomenal category of cyberspace joint crime with the specific object of infringement,and divides cyberspace joint crime into "cyberspace joint crime of information dissemination","cyberspace joint crime of money-related" and "cyberspace joint crime of order destruction".The three types of crime are used to discuss the conditions for the establishment of cyberspace joint crime and the scope of the establishment of cyberspace joint crime.The second chapter discusses the starting point of joint crime in cyberspace.This paper discusses the opposition between the subordination of accomplice and the independence of accomplice,and the struggle between the theory of joint crime and the theory of joint action.These two problems are the basic problems of the theory of joint crime,and also the premise of discussing the basic structure of cyberspace joint crime.The independence of the former pair of doctrines is essentially the opposition of the nature of joint crime,aiming at studying the source and basis of the punishability of accomplices in joint crime.The opposition of the latter pair of doctrines refers to the opposition of the scope of establishment of joint crime,aiming at studying the scope of establishment of joint crime,especially cyberspace joint crime.The scope of the category of joint crime in cyberspace should be discussed.Under the background of cyberspace,it advocates the independence of accomplice,clearly takes the individual actor as the starting point,and introduces one-sided accomplice theory into cyberspace.The behavior interaction between accomplices is carried out in the way of interaction between accomplices and in the perspective of social harmfulness of their own behavior.The sentencing mechanism of the accomplice refers to the function of the accomplice in the joint crime and the degree of aggravation of the other accomplices.The third chapter discusses the establishment mechanism and basic structure of cyberspace joint crime,which is also the core and essence of the article.The essential elements of the establishment are the static combination of the essential elements,and the basic structure aims at the dynamic linkage of the essential elements.Based on the general theory of our country's criminal law,in view of the particularity of cyberspace joint crime,this paper studies the elements of the establishment of cyberspace joint crime.Among them,focus on the subjective and objective aspects of the two elements,the main elements,the object of the elements and the exclusion of the cause of crime as a start and cross-cutting content to discuss.When discussing the subjective aspect,based on the contact elements,cognitive elements and willpower elements of the accomplice participants,this paper refers to the one-sided accomplice theory in the traditional criminal law theory,not as accomplice,supervisory responsibility theory,and discusses the duty of care and avoidance obligations of the accomplice in cyberspace.In cyberspace joint crime,we study the homotropy of the accomplice's behavior and the linkage mechanism between the accomplices in cyberspace,taking the consistency of goal,motive,duty of care and criminal interests as a whole.The fourth chapter of the paper mainly divides the types of accomplices and principal offenders in cyberspace joint crime into the starting point of the study,and studies the division of labor among the participants in cyberspace joint crime by the single system and the differential system in the theory of joint crime.Taking the role of accomplice participants in joint crime as the starting point,the division of responsibility is determined according to the principal-subordinate relationship of the role,and the criminal responsibility of different types of accomplice participants is implemented.The principal offender,the perpetrator or the principal offender,as the crossing origin of two different classifications of division of labor or function,has certain reference function to the sentencing of other narrow-sense accomplices.In the process of discussion,the theory of objectivity,subjectivity and dominance of crime are used as the penetration to clarify the method of distinguishing the principal offender and accomplice of cyberspace joint crime: according to the overall nature of cyberspace accomplice,the division of the principal offender and accomplice among the participants is made clear,and according to the degree of participation of the accomplice participants,the accomplice participants are determined.The application of accusation and the choice of sentencing range.The fifth chapter studies organized crime and aggregated crime in cyberspace.Because of the weakness of the controlling power of the principal elements in cyberspace joint crime,the organized crime and aggregated crime in cyberspace have a tendency to approach gradually.Therefore,the intensity of the organizer's control over the object of the organization determines the organizer's control and command of the trend of joint crime,and then determines its personal danger and social harm.The wrong cognition of the organizer to the age or status of the organization object does not affect the criminal intention interaction and behavior linkage between the accomplices.Compared with organized crime,the aggregated crime in cyberspace has stronger spontaneity and slow fever.Therefore,the behavior mode and control strength of the principal elements directly determine the extent of the legal interest infringement of the principal elements' organizational behavior.According to the scale of group management,coordination with other accomplices and the progress of crime planning,the criminal responsibility of the principal is determined.Other active participants determine the size of criminal responsibility according to the level of its downline development,the monopoly of providing network technology,and the degree of interaction with the principal.The sixth chapter discusses the helpful behavior in cyberspace,especially the neutral helpful behavior.The amendment of the Ninth Amendment to the Criminal Law stipulates the responsibilities of network supervisors and network technology providers in different articles of law,which are described by the same statutory penalty.This paper classifies the neutral help behavior and reflects the nature of the help behavior to construct the punishment mechanism of the help behavior in cyberspace.The criminal law regulation of cyberspace help behavior should establish the principle foundation of "negative help behavior" and "neutral help behavior".Combining with the classification of network neutral help behavior,this paper discusses the duty of care and preventive business of network technology practitioners,discriminates between proper professional behavior and proper business behavior,and according to technology.The identity of the supporters determines the size of their avoidance obligations.Subjectively,this paper studies the co-intentional liaison between network platform providers and relevant perpetrators of network crimes.According to the identity and length of service of the platform providers,the general impression of the audience on the network platform and the objective data of the website with clicks as the first reference,the anti-implementation measures are people's awareness of the harmful results.The social harmfulness of the network neutral help behavior is relatively independent,only when the circumstances are serious will it bear criminal responsibility.The substitution of technical means and the dependence of network crime can be used as the reasons for the reduction of criminal responsibility.The number of hits,browsing and forwarding pages can be used as an important reference for the objective harm of the behavior.The seventh chapter focuses on the abetting behavior in cyberspace.Because of the wide area and virtuality of cyberspace,the abetting behavior of cyberspace is mostly carried out by unspecified objects.Based on the particularity of the object of instigation in cyberspace,this paper amends and improves the traditional theory of instigation: the content of instigation in cyberspace is defined as a crime or an act equivalent to the social harmfulness of crime,which has the directivity to the audience in cyberspace.The scope of abetting behavior in cyberspace is studied by the validity of the number of hits,browsing and forwarding of the network platform.The intensity of abetting behavior in cyberspace is measured by the degree of abetting the audience's temptation and psychological compulsion.The social harmfulness of instigation in cyberspace is comprehensively assessed in terms of the intensity,scope and content of instigation.In the construction of sentencing mechanism,we should distinguish the independent instigation and accomplice instigation,and apply sentencing rules separately.Network platform audience,mainly minors,on the network space abettors,should be heavily punished.The application of "the instigated person did not commit the instigated crime" should be understood as instigating a specific object through cyberspace,with the criminal responsibility of the instigation as a comparison,as appropriate,lighter or mitigated punishment.