Understanding And Application Of The Crime Of Helping Information Network Crime

The crime of helping the information network crime,required by the second paragraph of article 287 of the Criminal Law of the People's Republic of China is not rules of measurement of penalty for accessory,but in order to fight against this kind of crime,intentionally legal regulation,which will make it be principal offender,instead of simply expanded the scope and degree of the punishment of accessory.At the same time,the crime of helping information network crime is established,which is based on the premise of the precondition of the illegal behavior that conforms to the constitutive elements conducted by the principal offender.The “clearly know” in the second paragraph of article 287 of the Criminal Law of the People's Republic,does not exclude the possibility of the negligence crime,which refers to the "knowing" of the behavior of others rather than the "knowing" of his own actions.Activities of information cybercrime within the crime of helping information network crime include both eight charges specifically for computer or network which belongs to "impede social management order crime" in the sixth chapter of the Criminal Law of the People's Republic of China,and also include other related crime that could be implemented by computer or networks such as the crime of fraud,slander,etc.,but means of application should differ with article 3 of this paragraph.As the conditions for the establishment of the crime,the “seriousness of the circumstances “specified in the second paragraph of article 287 of the CriminalLaw of the People's Republic,shall be specified or quantified to prevent the abuse of the crime.This paper is divided into four parts.The first part mainly summarizes several important theoretical problems in the crime of helping the information network crime,as well as the background,process and cause of these problems.Starting from the reality of network security and the legislative background of the crime of helping information network crime,it clarifies the practical significance of the current fight against cybercrime and the theoretical research.And then for the focus of dispute in the emergence process of the crime of helping information network crime,we have gone to the source and summed up a few key issues,which is ready for the future research of following chapters.The second key content of the second part takes the objective aspect of the crime as a point of entry,analyzing the connections and differences between the paid and the free of "help".And by the combination of "technical support" behavior and "help" behavior,this paper focuses on the analysis of how to presume the subjective "know" from objectively paid or unpaid in judicial practice,which has been summarized up and sort out.This section also explains how to define "what is serious" and how to quantify it.The major content of the third part of the second part takes the subjective aspects of this crime as the entry point,and analyzes how to understand and apply the “knowledge” of “knowingly using information network to commit crimes”.In terms of connotation and denotation,the author elaborate the relation and distinction between “clearly know” and “ought to know”,as well as the independence and object of “clearly know”.Through the analysis of typical cases,the author put forward the the importance of the meaning contact behind "clearly know",that is to say the presence,ways and character of meaning contact is of great significance to the understanding of "clearly know" and for the cognizance of this crime.Therefore,in this part,the author also analyzes the intentional and negligence of the crime,and believes that this crime should cover a crime of negligence.The third part mainly focuses on whether the punishment scope and degree ofthe crime of helping information network crime should increase and decrease,this crime should increase qualification penalty,analyzes the relationship between this crime with the first two paragraphs and the third paragraph by case analysis and research.In particular,after the introduction of the "fast-broadcasting case",the author intensively analyzes the third and the preceding two paragraphs of the crime,and make the theoretical relationship between the third and the first two paragraphs clearer.The fourth part,the author puts forward that we should attach great importance to research of the virtual space crime,and it is necessary to be a completely separate section as a system to study,eliminate the contradiction and difficulty between each other within the system,introduce this part of legal theory into normalized development,eventually form a complete theoretical system.