Research On The Principalization Of Neutral Preparatory Acts In Terrorist Crimes

Before the promulgation of the Ninth Amendment to the PRC Criminal Law, the judicial branch usually evaluates the preparatory behaviors to terrorism crimes based on the theory of joint crime and crime preparations. On August 29th, 2015, the Standing Committee of NPC passed the Ninth Amendment,with the new added Article 120 (2) stipulating the Crime of Preparations for Terrorist Activities.Therefore, the previous preparatory behaviors to terrorism-related crimes are now,through legal fiction, Independent Preparatory Crimes. This Criminalization of Preparatory Behaviors is a compromise made to achieve the public security benefits at the cost of individual rights. Therefore, full consideration shall be taken to apply the Criminalization of Preparatory Behaviors to the four statutory preparatory behaviors to terrorism crimes in order to achieve a balance between individual rights and public security.Logically speaking, a neutral preparatory behavior is less punishable than any other preparatory behavior. Therefore, reasonable attention shall be drawn to mark the boundary of criminal punishment. To provide Internet service is a typical neutral preparatory behavior. Internet Service Providers shall be divided into three categories,namely, Internet Content Provider, Internet Access Provider and Internet Platform Provider. An Internet Content Provider organizes and publishes information of its own and creates new words, therefore, it shall be liable in criminal law for its establishment of a website for promotion and publication of terrorism activities. Other than that, an Internet Access Provider or an Internet Platform Provider shall not, in theory, be held liable in criminal law.At the same time,the Ninth Amendment added Article 287(2) to the Chapter of Social Administration,stipulating that anyone, fully aware of a crime conducted by a third person through Internet, provides Internet access, server custody, network storage, communication transmission or any other technical support, or provides advertising, payment settlement or any other assistance for the crime shall, if the circumstances are serious, be sentenced to prison for less than 3 years or for detention in addition to a fine or be sentenced to a fine only. The criminal law theory shall have a narrow interpretation for serious circumstances.Substantial analysis shall be adopted on the Increased Danger by the neutral preparatory behavior. It shall only be regarded as a crime under the circumstances of a certain level of damage to legal interest or a substantial breach of law. However,Increased Danger is not sufficient to make a neutral preparatory behavior punishable.A Balance of Legal Interest shall be used to analyze if the benefits of the Internet service are less than the damages caused by it. Only if the benefits are less than the damages shall the Internet Service Providers be regarded as punishable in criminal law.