Discussion On Crime Of Assisting In Information Network Criminal Activities

In accordance with the Amendment(IX)to the Criminal Law of the People's Republic of China promulgated on August 29,2015,Crime of Assisting in Information Network Criminal Activities is intended to regulate actions assisting in information network criminal activities which worth punishment.Instead of ceasing dispute of how to control network crime,Crime of Assisting in Information Network Criminal Activities arises a lively discussion on preceding issues such as tendency of accomplice turning perpetrator and neutral conducts.Therefore the thesis,divided into four chapters,suggests that it is necessary to study the crime deliberating on possible problems that may be encountered in understanding,determining and applying.From our social reality,chapter one points out Crime of Assisting in Information Network Criminal Activities is set for utilitarian purpose.Based on systematic interpretation of Criminal Law Article 287 and mutual relationship between assisting behavior and joint crimes,the rechtsgut of Crime of Assisting in Information Network Criminal Activities isn't as specific as Murder,and it shall not be “public order” either,i.e.the rechtsgut of which shall be determined through the joint crime in which perpetrator took apart.The the subjective sin this crime required is intent unlawful objective elements listed in Article 287 b are typical conducts of common actions assisting in information network criminal activities.Chapter two suggests that if we choose “deserving of criminal penalty punishment” as clue to comprehend Crime of Assisting in Information Network Criminal Activities,we will find out that this crime shows both revenge and deliberation.As the interpretation of criminal law should be carried out in terms of the inherent criminal law,Crime of Assisting in Information Network Criminal Activities doesn't mean tendency of accomplice turning perpetrator but accomplice turning principal criminal.The definition of “tendency of accomplice turning principal criminal” comes that criminals,used to be accomplice,receives more denial than before,thus the harmfulness of accomplice's conduct rises,so as the urgency to suit punishment to crime,and as the consequence determination and punishment of accomplice would close to principal criminal.Through the analysis of the criminal responsibility models regulating actions assisting in information network criminal activities,proper responsibility models are joint crime model and negative crime model,i.e.Crime of Assisting in Information Network Criminal Activities and Crime of failing to perform the obligations for security management of information networks respectively.The common ground of the two kinds of crimes lies in the realization of suiting punishment to crimes and the main difference of which lies in cost and mode of proof,judiciaries are able to make proper choice to regulate crimes according to the difference circumstances of certain case.Chapter three analyzes elements of constitution of crime of Crime of Assisting in Information Network Criminal Activities.“With the clear knowledge ” is composed of “know for sure” and “should know”.“Know for sure” requires a very clear knowledge of crimes others committed or committing,and “should know” serves as an assumption for Mens Rea in order to get either statements or refutation of suspects.Crime in “others make use of information network to commit crimes” should be understood in the sense of criminal acts,and the nature of accomplice in joint crime should be understood as the linkage of illegal facts and individual evaluation of perpetrator.So,concept of continuing offense should be brought into network crime and shall be restrained in professional crime helpers.Application path of Crime of Assisting in Information Network Criminal Activities Should be shown in the following order:first and foremost we should judge whether traditional joint crime responsibility has solved problem we confront once and for all,secondly affirm that whether it is appropriate to apply the Crime of Assisting in Information Network Criminal Activities,thirdly deal with quantity of crimes that may puzzle us.The general evaluation element “which involve serious circumstances” confirms the necessity of punishment of assisting behavior and we should pay more attention to the seriousness of assisting behavior itself.Vagueness in the element “which involve serious circumstances” can do help with judiciaries distinguishing crimes from innocent act freely.By comparing series cases involving Crime of Assisting in Information Network Criminal Activities,it is pointed out that in practice Crime of Assisting in Information Network Criminal Activities appears characteristics of criminal orientations of large deviations,relying on joint crimes and inevitable comparison of criminal liability.Because of Article 287 b paragraph 3,principle of punishment in this crime is definitely “severe articles are superior to lenient articles”,which means judiciaries are not only authorized to balance crime and punishment by changing charges,but required to be as prudent as they can while choose or not choose this crime.Chapter four emphasis on limitation of applying Crime of Assisting in Information Network Criminal Activities.Excessive incrimination of assisting behaviors online causes conflict between state powers and civil liberties.Theory of secondary illegal of crime illuminates us to judge whether a certain conduct has run out of its social validity by means of pre-laws.Comply with pre-laws in good faith may be used as a theoretical basis to reduce illegality and responsibility.The first way to detach assisting behaviors online from criminal behavior is to prove that the helpers do not have criminal intent,the second way is to achieve the legal separation of accomplice by evaluating the social significance of the behavior.In the theory of running out social validity,element that “which involve serious circumstances” is a crucial object to judge.