The Research On Regarding Aiding Act Of Cybercrimes As Principal Offender

With the popularization of the technology of the Internet,the technology of the Internet brings people convenience of daily life.At the same time,the harmfulness of the cybercrime comes out.The types of the cybercrime have changed and the cybercrime have posed a severe impact on the traditional criminal sanctions.In order to solve this problem,during the past few years,academic circle and Justice practice have gradually endeavored the regarding aiding act of cybercrimes as principal offender model.This model has solid theoretical and practical basis.The standards for distinguishing accomplices in China are different with the system of all participants being principal offender or the system of differentiating between the principal offender and the accomplice.We should apply the double-layer differentiating system.This model does not violate the theory of accomplice dependency and reflects the theory of result invaluable and the theory of positive general prevention.The applying of this model has broadened the net of justice and makes the academic circle start to pay attention to the meaning and value of the principal offender.But this model has some problems.This model can not distinguish the fiction principal offender from the accomplice of the relevant accusation.The judicial interpretation about this model were beyond the power of the judicial interpretation.Sometimes,this model can not solve the problem of matching punishment with crime and responsibility.The essence of the problem of the imputation of the accomplice is the misunderstanding of the essence of joint crimes and the relationship between the action division classification method and the function classification method.The core of the action division classification method is the satisfaction of the constructive elements of a crime.By doing this,the spirit of the principle of statutory crime and punishment can be implemented.The core of the function classification method is basing on the function of the members of the joint offence to decide the measurement of penalty.There is no division between primary and secondary in the relationship between the action division classification method and the function classification method.It is more reasonable to apply the Action division classification method in the conviction links and apply the Function classification method in the sentencing links.As for the essence of the joint offence,the theory of the joint offence has experienced the stage of complete theory of criminal commonness,the stage of the theory of part co-crime and the stage of the theory of behavior in common.There are some defects in the complete theory of criminal commonness and the theory of part co-crime.The theory of behavior in common has conquered the defects that the complete theory of criminal commonness and the theory of part co-crime have.Also the theory of behavior in common has some advantages.Such as it can separate subjective responsibility from objective harm,enlarge the applying circle of the joint offence,implement the obligation principle,satisfy the requirement of the punishment of the joint offence which is psychological mutual support and encouragement and abide by the criminal law.So the essence of the joint offence is illegality.We should break the conditional restriction that the members in the joint offence should have the contact of criminal intention and completely brings the one-side accomplice in the Justice practice.The “knowing” elements in the one-side accomplice has two situations,“know” and “should know”.We can testify the “know” situation with the judicial certification rules.The testification of “should know” has two patterns which are testifying and presumption.We should use the presumption pattern in a strict way,only in the situation that the criminal law or the judicial interpretation have stipulated.We can solve the problem of the model of the imputation of accomplice by bringing in the double-layer differentiation system and one-side accomplice.There is no need to apply the accomplice-becoming-perpetrator model in this situation.But in the situation of assistance for illegal acts,we should use the accomplice-becoming-perpetrator model.So that we can strict criminal law net and fight against Internet illegal and criminal acts in a better way.This is the real meaning of the regarding aiding act of cybercrimes as principal offender model.