Research On The The Punishability Of Neutral Help Behavior

Neutral help behavior is a common phenomenon in daily life,how to regulate the neutral help behavior has always been a problem that plagues the criminal law theory and criminal practice.In terms of China,with the further transformation of society and the rapid development of Internet technology,the issue of the criminal regulation of network neutrality help behavior has raised the new issues for criminal law theoretical research and judicial practice.How to regulate the neutral help behavior has always been a problem that plagues the criminal law theory and practice circles.At present,the criminal law community pays great attention to this,but there are not only the homogeneity defects in the research content between the various theories,but also can not provide a comprehensive and reasonable basis for the determination of the penalty of neutral help.As to this issue,the article follows the basic idea of "raising a problem-analyzing a problem-solving a problem",and mainly discusses how to systemic identify the punishability of neutral help behavior from the five aspects as follows.Chapter one,the problems about the definition and regulation of the neutral help behavior.Firstly,the connotation of the traditional neutral help behavior.By analyzing the current monism and dualism controversy that define the connotation of the traditional neutral help behavior,we can distinguish between fact identification and normative evaluation of neutral help behavior.By analyzing the aspects of "neutrality","professionalism","helpfulness" and "haphazard ",we can know the neutral help behavior more accurately.In addition,the neutral help behavior is a kind of one-sided accomplice,which overlaps with the crime of omission.Secondly,the connotation of the net neutral help behavior.On the basis of affirming the net neutral help behavior,we should clarify that the net neutral help behavior is a special kind of net help behavior,and the former is included in the latter.Therefore,only if the perpetrator knows that his act of providing technical assistance or platform services may be used by others to commit cybercrime,but still provides service assistance,he may be considered as a net neutral help behavior.Thirdly,the current regulatory status and reflections on neutral help behavior.Although cases of neutral help behavior are relatively rare in judicial practice,it can be seen from relevant legislation,judicial interpretations,and practical cases that there are three problems with identify the punishability of neutral help behavior.Such as,treating neutral helping behavior as help criminal,expanding the scope of punishment for neutral help behavior;the regulation standards of neutral help behavior are not uniform;replaces legal causality with factual causality in identify the punishability of neutral help behavior.Chapter two,the theoretical basis of the systemic identification of the punishability of the neutral help behavior.The main content includes three aspects: the legitimacy,limitation,and theoretical basis of the punishability of neutral help.Based on the analysis of the legitimacy of the determination of the penalties of neutral help behavior,and the rationality of using the criminal law to regulate neutral help behavior,it is emphasized that the use of penal power to regulate neutral help behavior should also have its limitations,that is,the punishability of neutral help behavior.At the same time,it is necessary to analyze the theoretical basis of the punishability of the neutral helping behavior,so as to provide a sufficient theoretical basis for the determination of the punishability of the neutral helping behavior.First of all,the legitimacy of the punishment of the criminal law system of neutral help behavior.The principle of accountability,the legal benefit protection function of the criminal law,and the consideration of multiple factors in the criminal policy of combining justice with mercy determine the legitimacy of the use of criminal law to regulate neutral help behavior.Second,accountability with negative accountability as its core,the limitation of the criminal law's protection of freedom of conduct and the modest concept,which contains incompleteness and tolerance of the application of the criminal law,determine that the use of criminal laws and regulations to neutralize help behavior should adhere to the position of reasonable punishment and strictly limit the boundaries of punishment.Thirdly,from the punishment basis of accomplices,the theory of mixing causes,which bases on the common theory of some crimes,emphasize the common point of accomplices lies in the facts of the crime and account the illegality negative joint between accomplices,can provide a reasonable theoretical basis for the criminal regulation of neutral help behavior.Chapter three,the academic disputation and perfection of the regulatory path of neutral help behavior.Current scholars have put forward many opinions on the regulation of neutral help behavior,there are mainly two types: the path of accomplice and the path of omission.Among them,the accomplice restriction path can be further refined into a single element restriction path based on causality,illegal elements,and subjective elements,and a multiple element restriction path that integrates multiple elements.And the limitation path of omission constructs the imputation path of the neutral helping behavior by distinguishing between action and omission.But they all have some shortcomings.In detail,the single element theory within the accomplice limit path theory focuses too much on subjective or objective aspects,which violates the principle of subjective and objective consistency,and is too one-sided.The shortcomings of multiple elements to limit the path lies in the lack of clear criteria to select elements,and there is no logical connection between different elements.The path of omission only adopts a new standard to distinguish different types of neutral help behaviors to limited to regulate the neutral help behavior,the criminal regulation of neutral help behavior is postponed to specific behaviors Among the types,and the problem of criminal attribution of neutral help behavior is not fundamentally solved.On the whole,the common shortcomings of the current neutral help behavior regulation path are the lack of systematic consideration,the confusion of fact identification and standard evaluation,and the lack of hierarchical identification.Therefore,we can adhere to the concept of human rights protection and uphold an objectivist standpoint,and systematically restrict the criminal illegality of neutral help through a positive,comprehensive,and hierarchical determination.Chapter Four,the identification details of the punishability of neutral help behavior.The systematic restriction of neutral help behavior can from three aspects.In one hand,formal confirmation of the conformity of the constitutive requirements of the neutral help behavior.It includes two aspects: limitation of causality and deliberate identification of constituent elements.Among them,the causality of the neutral help behavior should be limited to between the neutral help behavior and the result of the infringement of legal interests,and should be judged positively,specifically identified.Adopt the theory of legality conditions to make judgments,and to restrict the determination for the purpose of standard protection.In the intentional determination of the elements of neutral help behavior,we examine the perpetrator's cognitive and will factors.Only when the perpetrator has a clear cognition and has the determination to promote the crime,we can affirm that the elements of neutral help behavior are deliberately established.On the other hand,the source and judgment of the illegality of neutral help behavior.Based on the subordination of the accomplice,the subordination of the neutral help behavior to the perpetrator is a restricted subordination limited to the illegal facts,and the determination of the substantive illegality,especially the judgment of the cause of the illegality obstruction,should be carried out independently.That is to say,the illegality of accomplices is relative,and it is a negative connection with the principal offenders.In this way,the problem of "accomplices without perpetrator " in the network neutral help behavior can be solved reasonably.Moreover,the restrictions for the penalties of neutral help.Specifically,it includes two aspects: the intentional determination of neutral help behavior responsibility and the judgment of anticipated possibility.As the core element of the intentional determination of responsibility,we can use the theory of criminal illegality to judge whether he recognize illegally.While whether the neutrality helps has the anticipated possibility can be judged by the type-person standard theory.Chapter Five,typified apply of the identification of the punishability of the neutral help behavior.Firstly,the identification of the punishability of traditional neutral help behavior.Regarding the neutral help behavior in daily life,the regulation of providing place-based neutral help behavior focuses on the intentional identification of constitutive elements,and the regulation of transportation-related neutral help behavior focuses on the deliberate identification of causality and constitutive factors,and the neutral help behavior of providing raw materials or consumer products mainly focus on the judgment of substantive illegality.In particular,the neutral help behavior of lawyer services should be comprehensively judged whether the client's behavior is criminally illegal and whether the legal service behavior itself is criminally illegal.Secondly,as a special type of online help behavior,net neutral help behavior has an impact on current judicial practice and accomplice theory.Therefore,based on the position of restricting the punishment theory,the determination of the criminal punishability of ordinary net neutral help must be based on the fact that the assisted person is a criminal act that meets the constitutive requirements,is directly intentional as a person,and has substantial illegality after cumulative calculations.It is premised on the anticipated possiblity,the neutral help behavior of the network platform can be judged according to the accomplice in the form of omission.On the whole,the new attempt to identify of the punishability of the neutral help behavior is theoretically reasonable,and also has important value for solving practical problems.Although the research on neutral help behavior theory is still in its infancy in our country,however,with the rapid development of Internet technology in the past 30 years,net neutral help behavior has gathered all the characteristics of neutral help behavior and pushed the problem of determining its punishability to the extreme.In the face of the current surging neutral help behavior in internet,the current neutral help behavior theory research has to " improve basic theoretical research " to solve the shortcomings of the theory itself,but also it is necessary to "prescribe prescriptions and seize medicine" for network neutral help behavior to solve regulation problems.But at the same time,we must know that the solution of neutral help behavior cannot only rely on the criminal law as a last resort.Except the basic theoretical discussion of criminal law,we should also pay special attention to the conceptual guidance and technical supervision of neutral help behavior,give full play to the role of non-criminal norms such as industry norms and pre-laws in the regulation of neutral help behavior.