As a newly added term in the Criminal Law of the People’s Republic of China,the crime of assisting information network crime is generally considered by scholars in the territory of joint crime to be the acts of accessory offenders.However,such understanding may lead to a logical paradox of the interpretation of the third paragraph of article 287 b of the Criminal Law and a theoretical dilemma of normative fiction(logic paradox refers to the fact that the same behavior is defined twice and oppositely,and normative fiction means that the imaginary joiner of offense does not apply).The theoretical definition of absolute accessory is based on the overall definition of the network crime assisting behavior and the application of the benchmark to measure the perpetrator and accomplice.The resulted theoretical dilemma implies that it is necessary to re-examine the current academic understanding of network crime assisting behavior and the criterion to define the perpetrator and accomplices.While focusing on how to accurately define network crime assisting behavior,it is of great significance to distinguish network crime assisting behaviors from the behaviors that the crime of assisting information network crime.In China’s criminal law practices,principal offenders and accessory offenders are mostly used in judicial determination.As the premise of the argumentation here,it is necessary to make clear the point of perpetrator researches based on the relation model of the accomplice system.In contemporary academic knowledge,there are two types of relation model of the accomplice system: the cross relation model and the overlap relation model.It can be found that both models have disadvantages after careful study on their theoretical basis.Based on the perspective of dual criminal participation system,improvements on the overlap relation model,and the construction idea of following a progressive relation model,perpetrator and accomplice should be applied at the illegal level to distinguish them and acknowledge that the meanings between perpetrators & principal offenders and accomplices & accessory offenders are identical;while the perpetrator system should be applied at the level of responsibility to further determine the principal offender and the accessory based on the importance of their roles.Most advocates of cross relation model use formal objective theory as the basis to distinguish perpetrator from accomplices.The construction of the progressive relation model implies the choice of perspectives,which has to some extent answered the question why the formal objective theory should be abandoned on the differentiation criteria of perpetrator and accomplice.Based on the construction of the progressive relation model,the author elaborates and studies the theoretical dilemma of the definition of the absolute accessory offenders,draws an explanation on the basis of his knowledge and discusses it.It is necessary to define the absolute accessory offenders due to the fact that the formalized concepts of taking the network as the criminal tool & space and regarding providing such criminal tool & space as the behaviors of accessory offenders does not differ from the formal objective theory.Therefore,the properness of many distinguishing theories,such as the theory of crime fact domination and pflichtdelikt,the theory of key role,the theory of cause-and-effect domination,and the theory of effective cause domination etc.is explored on the differentiation criteria of perpetrator and accomplice.As an existential theory,the theory of effective cause domination is obtained to distinguish perpetrator and accomplice by taking their domination of effective causes as the characteristic of accomplices.In this way,it can also constitute a perpetrator for network crime assisting behaviors based on their domination to the effective causes.Besides,a monistic behavior domination theory is adopted to define action and inaction offenders.Scholars generally consider the network crime assisting behavior equal to the behavior of assisting information network crime,but deny that the definition of absolute accessory reflects that the two are not equivalent but subordinate relations,i.e.the latter is only the subordinate concept of the former.Moreover,it should be more appropriate to classify those committed the crime of assisting information network crime as joint perpetrator in the perpetrator system as the crime itself applies to the special sentence rules of joint perpetrator.It can also explain why such crime applies the rules of imaginary co-concurrence in the field of joint crime and why there are cases in which the sentence of joint perpetrator is severer than that of perpetrator.Compared with traditional cognition,the advantage of the progressive relation model lies in the clarity of its sentencing and the categorization of the process.The nature determination of network crime assisting behavior in the system of perpetrator may not have an effect on the understanding of the principal offender system,but in the progressive relation model,it is within the scope of different sentencing because it belongs to accessory or joint perpetrator,which confirms the significance of studying the perpetrator in network crime assisting behavior. |