| The openness,virtuality,and interactivity of cyberspace provide a fertile ground for the breeding of cybercrime,and various types of cybercrime are emerging.Cybercrime often has strong concealment.In particular,most network help behaviors are quite independent due to their "one-to-many" characteristics.It is difficult to make a completely reasonable evaluation of the traditional joint crime theory system.It exposes its own defects and deficiencies in the new era of the network.Therefore,in order to better regulate the criminal help behavior in cyberspace,China has added a series of crimes against cybercrime in the Criminal Law Amendment(IX)issued in 2015,including the crime of helping information cybercrime.It has cracked down on helping cybercrime and positively responded to the independent harm of helping behavior in the network environment.Whether the establishment of the crime of helping information cybercrime is a question of helping the act of being committed,most scholars agree,but some scholars have criticized it,and Professor Zhang Mingkai believes that the establishment of this crime is not to help the act is being committed,but only It is a sentencing rule that helps the offender and is still subordinate to the common crime evaluation system.This article believes that whether "positive offense" or "sentencing rules" based on joint crimes are all sinful paths to the cybercrime help behavior,the two are not completely opposite.This article is divided into four parts: introduction,main body,conclusion,and thanks.The main body is divided into four chapters:Chapter 1: Criminal Law Legislation and Guilty Path of Cyber Crime Helping BehaviorFirst,deconstruct the types of cybercrime help behaviors,and divide them into technical support-type help behaviors and non-technical support-type help behaviors from the legal provisions;divide them into different and different behaviors,such as different behaviors.As a result of the behavior of the crime ofhelping information cybercrime,it may also include a punishable neutral network to help behavior and the establishment of a common criminal.Secondly,through the investigation of relevant legislation and judicial norms,this paper analyzes the regulation and evolution of China's legislation and judicature on the help behavior of cybercrime.Finally,through the detailed analysis of specific cases,the different sin paths of cybercrime help behaviors are brought forward: one is the sin of cybercrime to help the crime,and the other is the accomplice of cybercrime help behavior,which can be based on criminal law.The provisions of Section 287 bis,paragraph 3,“Consisting Other Crimes”,stem from a discussion of another path,namely the criminalization of cybercrime,and other convictions.Chapter 2: Discussion on the Problems in the Application of Criminal Law to the Crime of Helping CybercrimeFrom the perspective of the crime of helping information cybercrime,this paper discusses and explains the typical problems that occur in the application of criminal law.First of all,the subjective aspect of the crime is a difficult problem-"knowing".This article believes that it should not include negligence,but rather that it actually knows and has reason to know that the degree of knowing can reach the possibility that the perpetrator recognizes the behavior or result.Secondly,the problems in the objective aspect of the crime,such as the identification of the helper,should be based on the premise that the act of assisting constitutes a crime,and the act does not necessarily need to satisfy all the elements of the crime,but the crime of illegal elements is required.In addition,in cases where the behavior satisfies the constitutive elements of the crime,especially the "severe circumstances" standard,the crime does have an attempted crime.As for the determination of "serious circumstances," judicial interpretation is urgently needed to establish a clear standard.Chapter 3: Discussion on the Problems in the Application of Criminal Law to Helping Criminal CrimesFirstly,it defines the subjective and objective constitutional conditions for the accomplice of cybercrime to help the behavior,and requires the helper to subjectively interact with the practitioner.There is a two-way meaning connection between the actor and the actor.However,the “flexible” two-way meaning can be mitigated from the contact and cognitive factors.Liaison;objectively implementedthe corresponding help behavior,and has a causal relationship with the damage caused by the implementation of the behavior.Secondly,through the analysis of the constituent elements,the difference between the cybercrime help behavior and the accomplice is mainly explained.The key point is that the former subjectively requires one-way communication,while the latter is required to be based on two-way meaning communication."Flexible" means contact.Therefore,this paper believes that based on China's criminal position,the one-sided accomplice theory does not apply to the criminal law enforcement activities of cybercrime help behavior in China.Chapter 4: Discussion on the problem of other crimes committed by criminalization of cybercrimeBased on the corresponding provisions of the third paragraph of Article 287 bis of the Criminal Law,first of all,the provisions of “consisting other crimes at the same time” are understood as the competition and competition relationship,and the judgment of the competition for the regulations must not only be cross-inclusive between the laws and regulations.In terms of formal standards,it is also necessary to consider the substantive criteria such as the identity of legal interests and the inclusiveness of illegality.Secondly,through the analysis of specific cases,the application of the conviction rules for “conviction and punishment according to the punishment of heavier punishments” should be combined with the specific gravity of the specific crimes and the sentencing rules for specific analysis.In addition,Explain the connection and difference between some crimes that have a certain degree of similarity with the crime of helping information cybercrime,such as the refusal to comply with the crime of information network security management and the crime of illegally using information networks,and the crime of providing intrusion,illegal control of computer information systems,and tools.Explained.Finally,through the interpretation of the "quick broadcast case",it is concluded that the guilty cybercrime help behavior includes the type of implementation,and the judgment and analysis of the statute competition on the crime of the company's quick broadcast company is judged and resolved.The possible innovations and deficiencies in this article:The innovation of this paper is to use the path of sin as the starting point to carry out the research on the application of criminal law to help cybercrime.The legal descriptions of the criminalization mode and the accomplice model were respectively carried out,and the corresponding legislative and judicial interpretation provisions were sorted out.The specific criminal law application of each model was elaborated and corresponding suggestions were put forward.This article also takes the "quick broadcast case" as an example to put forward the thinking that the positive cybercrime help behavior includes the implementation type.Of course,due to the limited knowledge of the author,there are still many shortcomings in this paper.For example,the expression of relevant theories is not concise and direct,and there is also a lack of analysis and judgment on relevant theories.The French expression of French is lacking,and some texts are slightly vernacular and protracted. |
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