Research On The Issues Related To The Crime Of Information Cybercrime

Amendment IX to the Criminal Law added the crime of helping the network criminal activities,the provisions restrict serious cases of helping the network crime behavior to an independent charge and specific penalty contents.This paper discusses the legislative background,significance and theoretical basis,and deeply analysis the crime elements that are scientifically and abstractly summarized in the provisions in detail.Moreover,it demonstrate the relationship between helping information network crime and network joint crime,and how to realize conviction and sentencing in the judicial practice.And this paper also scientifically qualified the scope of the crime,which will be combated by us,in order to prevent the happening of punishment,excessive or indulgence crime situation.This article is divided into five chapters:The first part generally introduces the crime of helping information network crime.Combining with the specificity of network crime,the serious social harmfulness and the judicial practice requirement of the crime of helping information network crime,this paper analysis that the new criminal provisions have practical significance in maintaining the network stability,fighting against network crime and regulating the behavior of network technology providers.The second part discusses that making the crime of helping information network crime into a separately legal punishment is essentially making the accomplice crime behavior principal.And this application did not break the guide of attribute theory of accomplice,and on the basis of “making the help behavior into a separately legal punishment is just the rules of sentencing” putted forward by professor Zhang Mingkai,the author expounds some different views.The third part explores the elements of the crime,it's identification and some possible controversy.First,the subjective criminal intent,including the pursuit of the interests of direct intent and indirect intent that contains display technology and so on.In the aspect of the criminal intent determination,it is necessary to make use of the criminal presumption to exclude reasonable doubt according to the existing facts.And under the certain conditions,“something should know” are supposed to concern as “something knowingly”.In subjective aspect,the crime of helping the crime of information network does not include criminal negligence.In this paper,the author thinks that criminal negligence should be included in the scope of the crime to regulate the crime of helping information network crime.Second,in the objective aspect,"crime" in the sense of criminal behavior just need to require the behavior crime,not must be punished."Help" should be limited to those behavior which is necessary to help,excluding not indispensable help.Combining with the "Wei Zexi incident","Jiedaibao 'naked' lending events",this paper respectively analysis the behaviors that provide advertising for the promotion of network crime and payment and settlement behaviors.The fourth part discusses demonstrate the relationship between helping information network crime and network joint crime.Criminal law regulate this help behavior to a specialized terms,and this doesn't mean to exclude the application of joint crime.And that according to the case in the judicial practice,it's suitable to evaluate the behavior that provides network help into imaginative joiner of offense,and punish from a felony.This not only realizes appropriate punishment for crime and make illegal act held,but also avoid punishing too light with a felony penalty.Moreover,with definite legal grounds,changing original felony into this crime conform to the basic principles of legality.The fifth part,combining with the problems that may be encountered when we use the crime in judicial practice,and the scope of the reasonable limits of punishment,makes some comments to hope to make difference in handling the actual operation of the crime in the future.Through judging the neutral technical behavior,which may have hidden risk,that is to say,compared with the common network technology,the possibility that used by others to implement network crime,this paper define the punishment neutral help behavior;and scientific restrict the expansion of "serious crime" to prevent crime circle from excessively expending;in judicial practice,when people help the network crime collude with perpetrator,it should be charged into a common criminal,but when the perpetrator cannot be seized or does not constitute a crime,the serious helper should be punished in this crime.While when the helper of the cyber crime is just "knowing" that the behavior of people engaged in cyber crime activities,according to the evidence investigation of this case,we should treat them as imaginative joiner of offense.