Several Issues Of The Judicial Application Research On Offences Of Helping Information Network Criminal

Since two of the 287th articles of the Criminal Law established the Offences of Helping Information Network Criminal Activities,there has been controversy on the judicial application of this crime in the theoretical and practical spheres of criminal law.Some scholars believe that this crime and related judicial interpretations are contradictory on accomplices' penalty regulations,which leads to the confusion of the applicable standards of the crime and the unreasonable phenomenon,including different judgments of the same case and different penalties of the same case.Therefore,this article begins with a thorough study of the conviction and sentencing standards of this crime and the specific application issues in the judicial practice,hoping to benefit the difficult problems encountered in judicial practice.The paper is divided into five parts.The first part is about the legitimacy of network-assisted behavior's inculpation.It mainly discusses from two aspects:realistic basis and theoretical basis.At the social reality level,the formation of "dual society",the development of network-assisted behavior,and the current situation of cybercrime in China all urgently require criminal legislation to respond to cybercrime.On the theoretical level of criminal law,because of the nature of the network-assisted behavior and the traditional accomplices theory dealing with the dilemma of cyber-assisted crime,the theory of criminal law needs to study frontier issues in order to keep it advancing with the times.The second part mainly concerns the question of the nature of helping behaviors.At present,there is a dispute between "viewpoint of sentencing rules" and " principal offender viewpoint " in the theoretical circle of criminal law.This article agrees with the latter viewpoint,however,it is part of the helping behaviors becoming principal offender.In other words,The establishment of this crime is limited to the scope of the one-sided helper.This paper has collected the latest achievements of the theory of one-sided accomplice at home and abroad,providing a solid theoretical foundation for its establishment.In addition,restricting the application of this crime to the scope of a one-sided helper not only helps to coordinate the relationship with the relevant judicial interpretation,but also helps to resolve the dispute between traditional accomplices theory and one-sided accomplices theory.The third part is mainly about assuming awareness of network-aiding intention.The criminal law and related judicial interpretations lack uniform standards for the definition of "knowing".Some scholars believe that "knowing well" does not contain "should-know",and some scholars believe that "knowing well" should contain"should-know".This paper agrees with the presumption of knowing that the "knowing"should include "should-know" in the network domain.However,in defining the"should-know",a series of strict examination standards should be set.In addition,the content of "knowing" is also the focus of this study,such as the nature of the principal offender,and the helper only needs to recognize that the behavior is a criminal act by person being assisted,and does not need to know the specific crimes committed by the person being assisted.The fourth part is the plot identification problem of network-assisted behavior.It mainly consists of three parts:First,since the provisions of the criminal law only provide general provisions,considering the nature and statutory penalty of the crime as same as refusing to perform the information network security management obligations,it is possible to refer to one of the 286th articles of the Criminal Law which enumerates specific circumstances of the crime.Second,analyzing whether the "network factor" is one of the serious circumstances.In the judicial practice in China,it is common to apply the "network factor" as a lowering standard,but in fact it is a heavier punishment for criminal suspects and defendants.Therefore,not all crimes involving cyber factors should regard network factors as aggravating circumstances,it should depend on the specific circumstances.Thirdly,we use deviant behavior beyond the scope of business or obtaining illegal benefits as a criterion to analyze whether cyber-assistance agents constitute crimes.The fifth part is the problem of the standardized identification of network-assisted behavior.This article collects and analyzes the typical cases since the execution of the crime from the Chinese judgment documents online,and combines the theory of criminal law with judicial practice for research.In the judgment results,they are mainly divided into two major categories.One is convicted and sentenced on the basis of accessary accomplices and direct executor criminals,and the other type is to convict and punish by offences of helping information network criminal activities.In the understanding and application of "simultaneously constituting other crimes",some scholars agree that"simultaneously constituting other crimes" should include the form of accomplices of other crimes,including one-sided help form.This article does not agree with it.This is the result of convicting by penalty interpretation and putting the cart before the horse.