Research On The Punishment Of Attempted Instigates-The Crime Of Helping Information Network Activities:Clarification Of The Nature Of The Law And Interpretation Of The Doctrine

In the age of digital information,the temptation of the network is everywhere.Although the development of the network brings people a lot of convenience in life,it also gives rise to the diversification of the forms of crime,which has posed a new challenge to the current criminal law.The preposition of legal interest protection is an important means that Chinese legislators are willing to adopt.The crime of helping information network criminal activities is one of the newly established crimes in the Criminal Law Amendment(9),and before the corresponding judicial interpretation has been issued,Scholars have different interpretations of the nature of the crime of helping information network criminal activities,and at the same time lead to the differences and difficulties in the specific application of the crime in judicial practice.After clarifying the nature of the crime of helping information network criminal activities,the author will normalize the two constitutive elements of network aiding behavior and subjective"knowing" from the angle of legal dogmatics.In order to eliminate the misunderstanding of the nature of the crime of helping information network criminal activities and to provide a reasonable way to explain the specific application of the crime,this paper mainly starts from the following four chapters.The first chapter mainly discusses the current academic theories about the nature of the crime of helping information network criminal activities.There are two views on the nature of the crime of helping information network crime in our country.One is the sentencing rule represented by Professor Zhang Mingkai,and the other is the crime of aiding behavior,which is respected by domestic scholars at present.Only by removing the difficulties of the stereotype of traditional accomplice mode and constitutive elements can we break down the theoretical misunderstanding of this view by relevant scholars.The second chapter is to carry on the inspection to the existence foundation of the aid behavior principal offense.In the concept of the principal crime in the continental law system,the explanation path of the theory of substantial objectivity and the crime fact domination is the existence premise of the phenomenon of helping the behavior principal offense.Because of the neutral characteristic of network technology in our country,we have to carve out the decriminalization of neutral help behavior in order to limit the condition of network neutral help behavior,which is also the basis of punishment for the principal offense of helping behavior.The third chapter is based on the legislative implication of the principal offense of aiding behavior and the legislative motivation to clarify the basic ideas of the establishment of the crime of helping the information network criminal activity,so as to further clarify the nature of the crime of helping the information network criminal activity.Chapter 4th is the normative interpretation of the constituent elements of network aiding behavior and "knowing" under the legal dogmatic view valve.There is a legislative risk to enlarge the scope of criminal punishment of the aiding behavior itself.However,the specific constituent elements of the crime of helping information network criminal activities are easy to expand the scope of application in judicial practice because the words are too vague.Using the means of legal dogmatics to explain the specific constitutive elements of the crime is helpful to prevent the legislative risks.In.the mode of omission of the network aiding behavior,the relevant obligations assumed by the subject of the act are not consistent.Therefore,correctly standardizing the obligations of network service providers is the key to define the mode of omission of crime of helping information network criminal activities.In the subjective element of "knowing",on the basis of concretely grasping the cognizance of "knowing",The purpose of limiting the scope of application of this crime is to limit the object of "knowing" as a criminal act.