The Crime Of Helping Cybercrime Doctrinal Analysis

In order to help the cybercrime legislation,from the initial administrative punishment,to the specific judicial interpretation,and now to establish a separate crime,it means the continuous development of China's criminal law.However,the addition of the crime of helping information cybercrime has made "helping offenses" once again become a topic of academic controversy.The reason for becoming the focus of controversy is,on the one hand,because the help behavior is an accomplice in the theory of accomplice,and whether the accomplice can be sinned independently from the principal.On the other hand,if the act of assisting is independent,it is still necessary to be bound by the crime of committing a crime.According to the traditional theory of our country,the accomplice must be subordinate to the practice in terms of constitutional elements and criminal responsibility.The establishment of the helper must be attached to the practice.However,cybercrime is different from ordinary crime,and the harm of network help behavior is certain.It will transcend the harmfulness of the practice,and it will be an inevitable development trend to separate the behavior from the practice.It is precisely because of the particularity of cybercrime itself that it is necessary to analyze the elements of the crime of helping information cybercrime in strict accordance with the requirements of criminal law.First,this crime stipulates that in the chapter on the crime of nuisance of social management order,and rooted in the special background of "cyberspace",then the legal benefit of this crime should be network information security and network order.Second,the objective aspect is based on "help behavior." The law clearly stipulates that the object of help behavior is that others use the information network to commit crimes.The "crime" here should also proceed from the criminal law itself,and does not include general illegal acts,and the crime must be implemented by using the information network.The law also clearly defines the type and severity of help behavior,limits the scope of the help behavior and the criteria for conviction,thereby avoiding the problem of excessive punishment for the crime.Third,the main element of this crime is the general subject,and the unit is also the subject of this crime.Fourth,this crime is intentional crime,but it is also distinguished from the "intentional" of the general rule.The "intentional" of the general rule is for the result of the crime,including the cognitive factors and the will factor,and the crime as a behavioral criminal,as long as "knowing" It is okay to commit crimes by using the Internet to commit crimes,and to "know" that you can help others with cybercrime,without considering the will factor.It can be seen from the above that this crime has certain difficulties in the application of justice.First of all,regarding the subjective "knowing",this crime "knowing" must include "knowing" or "should know",and on this basis,the "knowing" is specifically identified.Secondly,regarding the grasp of the "crisis of serious crimes" of this crime,you can refer to the US "safe haven principle" and other cybercrime regulations on "serious circumstances",such as the number of times of assistance,the amount of illegal gains,and the degree of harm.Confirmation in other aspects.Finally,this crime has similarities with other cybercrime.In the process of judicial application,there are situations in which the crime cannot be determined.The crime can be clarified by analyzing the constituent elements between the two.In addition,the sin is easy to form a competing relationship with the helpers of other crimes.In dealing with the issue of co-opetition,the punishment should be punished by the principle of imaginary competition,and “one-heavy punishment” should not distinguish between misdemeanor and felony by the severity of statutory punishment.The distinction should be made by the punishment of the sentence.