Research On Related Issues Of Crimes Of Helping Information Network Crime

With the development and popularization of internet technology,network has become independent space closely related with every individual rather than communication tool merely,which brings not only convenience to our daily life but also conditions for illegal offence,and thus become new places where crime takes place.According to The Amendment ?to the Criminal Law of the People's Republic of China promulgated by Standing Committee of National Congress for the sake of regulation,a serie of new charges of crime has added,including crime of helping information network crime,the main content of which is to bring network service for internet crime such as internet access,network hosting,and network storage into spectrum of punishment.Currently,most scholars hold that this crime is the legislative pattern in which criminalization of abettor takes place,namely stipulating abettor who provides services for the concrete internet criminals as principal offender through legislation.Thus doubts raised,the scholars point out the neutrality of its objective behavior,and believe that criminalization of abettor may lead to the all-sided punishment,which seems to strict and wide-ranged for internet services and may be harmful to the development of internet.Oppositely,Prof.Zhang Mingkai comes up with theory of measuring penalty from the perspective of the explanation of the essence of crime.He confirms the abettor character of this crime,denies its character as principal offender,points out the strict conditions that make services as crime,and rules out behavior which is anything but infringement of legal interest from the scope of crime,triggering comprehensive discussion among scholars.Therefore,argument on the character of the crime has existed.Undoubtedly,neither subjective nor objective perspectives of the crime can be studied without defining the legislative pattern of the crime.Besides,the scope of this crime is too wide,making the practical application of the crime necessary to solve in current theoretical discussion.Starting from network crime,this paper discusses the concept and existing problems of crime of helping information network crime,and raises two basic acknowledgements of the crime,theory of criminalization of abettor and theory of rules of punishment measurement.On the basis of the comparison of the above two theories,theory of rules of punishment measurement is supported,and issues on both objective and subjective aspects of this crime are accurately defined.This paper distinguishes the differences between objective manifestation as well as standard of accomplished and attempted offence of this crime and those of crime of illegal use of information network,and discriminates terms in the subjective aspects such as crime commitment and awareness.Further,this paper discusses the existing problems on legislation,and comes up with concrete suggestions for improvement.Four parts are divided in this paper.The first part reviews and analyzes the basic theory on crime of helping information network crime,which is the foundation of the discussion on concrete issues of this crime.First,starting with the developing concept of network crime,the concept of this crime is put forward.Moreover,theory of criminalization of abettor and theory of rules of punishment measurement,the two arguments on the legislative pattern of this crime among scholars are claimed.After the acknowledging the similarities and differences between these two theories,this part holds that theory of rules of punishment measurement is of more theoretical importance to the explanation of this crime.The second part is the analysis on the objective aspects of crime of helping information network crime according to theory of rules of punishment measurement.Currently,the description on objective aspects of this crime is neutral and far from deepgoing,and obscurity has been widely existed in its legislative application.Thus,on the basis of theory of rules of punishment measurement,this part aims at refining the objective manifestation of this crime,clarifying the objective manifestation as well as accomplished and attempted offence,distinguishing this crime and its similar crime such as crime of illegal use of information network in terms of behavior,deepening the understanding of the objective aspects of this crime on the basis of studying the legislative aim of setting this crime.The third part discusses the subjective aspects of of crime of helping information network crime according to theory of rules of punishment measurement.Currently,various explanations have existed on the terms “commitment of the crime” and “awareness” in “awareness of the commitment of others' illegal use of information network”,which may affect the accurate grasp of crime of helping information network crime.Theory of rules of punishment measurement applied,this part theoretically explains and analyzes the above subjective aspects combining with the characters of this crime,and maintains that “commitment of the crime” refers to the offence meeting the punishment standards,and that “awareness” refers to knowing in reality.In the last part,the existing problems and suggestions for improvement on conviction and punishment of this crime in the legislative process are put forward.Concerning conviction,the standard is fairly obscure,and the term “severe violation” should be further defined combined with the scope of punishing of neutral helping behavior.And the term “while committing any other crimes” in “whoever commits any other crime while committing this crime shall be convicted and punished according to the provisions on the crime with heavier penalty” in paragraph 3 of this crime is too wide in its range of application,and is contradicted with the term of penalty as well as the character of abettor of this crime,with the result that the practical application of this crime is narrow,which makes little contribution to its legislative aim and is calling for adjustment.