Research On The Penalty Of Network Neutral Help Behavior

Network neutral help behavior was born under the background of network,and based on the traditional neutral help behavior.The Amendment to the Criminal Law of the People's Republic of China(9)[hereinafter referred to as the Amendment to the Criminal Law(9)] incorporates the crime of refusing to perform the obligation of information network security management and the crime of helping information network security activities into the criminal law,trying to block the crime space of network crime comprehensively from two perspectives of inaction and action,and to upgrade the controversial network neutral assistance behavior to justice.The height of crime marks the beginning of the comprehensive punishment of network neutral help in our criminal law.The business behavior of network service providers tends to be criminalized,the security management obligation expanded and the helping behavior perpetrated.Behind it is the embodiment of the omnipotence of punishment and the idea of severe punishment.The unrestricted enlargement of the punishment of network neutral helping behavior is not conducive to the long-term development of the Internet industry in China,nor to the harmony and stability of society.Limit the punishable scope of network neutral assistance,and realize the dynamic balance between criminal law freedom protection and criminal punishment.Network neutral help behavior evolves from traditional neutral help behavior and is one of the important forms of neutral help behavior.Therefore,the study of this behavior should always be based on the traditional theory of neutral help behavior.There are several different theories about whether to punish the network neutral help behavior,which are mainly divided into comprehensive punishment theory and limited punishment theory.The theory of comprehensive punishment emphasizes the punitive nature of the act of network neutral assistance,but ignores the particularity of the act of neutrality and improperly restricts civil liberties.It has been abandoned by most countries to adopt the theory of restrictive punishment.The theory of limited punishment can be divided into subjective theory,objective theory and compromise theory.It is not difficult to find that both subjective and objective theories unilaterally emphasize the punishability of neutral assistance,which is easy to expand the scope of punishment.The conditions for the establishment of a crime can be divided into the elements of illegality and the elements of responsibility.The basic requirement of the relationship is the unity of subjective and objective(accountability).The relationship between illegality and responsibility is not additive,but hierarchical or restrictive.In the logical way of defining the punishability of network neutral assistance,we should always adhere to the guidance of crime constitution theory.Taking objective aspect as the logical starting point,and on the internal rank of objective aspect,we adhere to three criteria,and the relationship between criteria is progressive.Only when the former criterion is met,can the nextcriterion be investigated.If the former criterion has reached a negative conclusion,it can be directly inferred that the network neutral help behavior is not punishable,and there is no need for the next stage of testing.In addition,we need to further consider the subjective level of network neutral help behavior.We must satisfy two conditions at the same time.We should have helpful understanding and clear understanding that the principal offender is about to commit a crime.We should also have helpful will to actively pursue and hope to transform it into our own motivation on the basis of the original understanding.In this regard,the subjective elements of the network neutral helper only play a role as a reason to exclude criminalization,rather than as a reason to constitute a crime alone.In a word,all crimes are an organic unity of objective and subjective elements of harmful acts.We should adhere to the principle of legally prescribed punishment for a crime,apply the secondary evaluation norm of criminal law,limit the punishable scope of network neutral assistance,and realize the organic unity of criminal punishment and protection of legal interests.