Study On Crime Of Helping Information Network Crime

The content of this paper is the crime added to the criminal law amendment(nine)-crime of helping information-network crime,mainly involving its legislative nature and judicial application.Apart from the preface,this paper consists of four chapters:The first chapter is entitled "the legislative nature of the crime".Although this crime is added to the criminal law amendment(nine),there have been some studies on it.As for the legislative nature of this crime,scholars mainly hold the opposition between the principle of helping criminals and the rules of sentencing.Advocates of sentencing rules believe that the Internet crime can be solved with the existing theory of joint crime,and the creation of this crime in legislation is not a new conviction model.In other words,the information network is still helping behavior according to be punished as a joint crime,but legislation sentencing rules are no longer applicable sentencing provisions of the general provisions of accomplice.But this article thinks that the opinion of sentencing rules will bring about great defects.The legislative nature of this crime belongs to the legislation of helping the perpetrator to commit the crime.On the one hand,the criminal law and other relevant legislation help behavior crime fiction is consistent,which is helpful to the unity theory of criminal law;on the other hand,the independent criminal responsibility network help behavior is more scientific.The second chapter is entitled "the legislative justification of this crime"".From the legislative point of view,the addition of this crime implements the principle of balance between crime and punishment,and agrees with the positive general prevention theory.Because of the one-sided accomplice theory itself has not yet reached a consensus in the academic circles,the legislature will help prepare the network behavior as the principal treatment,on the one hand is to avoid the one-sided accomplice theory for expansion,but also to a large extent dispelled the one-sided accomplice brought controversy.Because the network help behavior usually has the management and the business appearance,its behavior nature and the neutral help behavior category are closely related.However,the theory of risk society requires that we can not tolerate all the risks caused by technological progress passively.Therefore,this section also defines the scope of the boundary beyond the "neutral helping behavior".The network will help enhance the behavior for criminal behavior,which is to adhere to the distinction between system crime system,legislation on accomplice and principal,also noted differences between virtual space and realistic space quality,thus adding this article belongs to the special consideration of the special problems.The essence of crime is to infringe the legal benefit,but at the same time,it has to consider the antisocial behavior of the actor himself,and the network help behavior is independent of crime,which conforms to the dual-behavior-non value theory.The third chapter is entitled "analysis of the constitution of the crime" ".On the objective constitute,support human behavior of others crime with internet access,server hosting,network storage,communication technology,or provide advertising,payment and settlement,serious behavior;on the subjective constitution,is over 16 years old actor who knows others through information network crime.Here," crime " should refer to the essential crime which conforms to the constitutive requirements and has the illegality".The so-called "knowing perfectly well" should be divided into "true knowledge" and "ought to know",in addition to the confession of guilt according to the actor,it should also be presumed mainly in combination with objective behavior.The fourth chapter is entitled " The judicial application of this crime".Some commentators point out that the addition of this crime will help to promote behavior as a principal offender,which means that the criminal policy idea of early defense and strengthening combat.This article argues that this is not the case.First,this crime described network help behavior itself should be based on the essence of interpretation is limited;secondly,as the elements of "serious" expression compared to the ordinary accomplice,improve the crime threshold;finally,according to the theory of risk society,the inherent risk caused by technology advancement should be allowed by law.The crime is only those considerations beyond the scope permitted behavior.The provisions of paragraph third for the imaginative joinder,but its application should be made to limit the interpretation,that is only higher than the help information network crime crime in the legal punishment of specific criminal punishment,it can be used for processing the felony.