Research On Judicial Identification Of Crime Of Helping Information For Network Crime

As to whether acts of neutral assistance are substantially punishable,a definitive conclusion has not been reached by the criminal law community in recent years.However,with the advent of the new Internet era,cyber-assistance behavior has become a critical factor of cyber-crime due to its own specificity,the weakening of the subordination of its accomplices and the increasing independence of its actions determine the increasing social harm and even go beyond the specific conduct.In order to address the special risk of infringement of legal interests in a complex Internet environment,the Criminal Law Amendment(IX)Act of China has created a new offense of facilitating crimnal activities in information networks.Although the legislative approach of independently criminalizing cyber-assistance with neutral technical attributes has played a role in combating and preventing new types of cyber-crime,it has raised several controversial issues regarding the application of the law.First,whether the creation of a separate criminal offence for assistance with neutral characteristics violates the principle of criminal law modesty.Secondly,whether the crime of helping information network criminal activity breaks the traditional theory of joint crime and how the legislative nature of the crime of helping information network criminal activity should be located.Third,the legal provisions of the crime of facilitating criminal activities of information networks are vague,and how clearly their subjective and objective constituent elements should be defined.Fourthly,how should the issue of judicial overlapping of laws in the offence of facilitating criminal activities on information networks be addressed so as to ensure that the application of this offence does not contradict the principles of criminal law?This paper first discusses the three doctrines of the nature of the crime of aiding information network criminal activity in the current criminal law community and concludes that the nature of the crime of aiding information network criminal activity is the justification of the act of help.Secondly,on the basis of the positive criminalization of helping acts,the judicial application of the crime of helping information network criminal activities was further analyzed in conjunction with the content of judicial interpretation.It is clear that the subject of this crime is a network service provider in the narrow sense of the word.The target of this crime is a general unlawful act and the scope of subjective knowledge of this crime includes only the circumstances of which it is known,but not the circumstances of which it should or could have been known,and the gravity of this crime should be considered in terms of the number of acts and the amount of the proceeds of the crime,etc.The aim of limiting the range of application of this crime is to be achieved through a rigorous definition of its constitutive requirement.Finally,this article,in conjunction with our local situation and practical cases,distinguishes between the crime of helping information network criminal activities and the crime of unlawful use of information network,and accurately applies the legal rules of this crime to imagine judicial overlapping from the same punishment.The crime of facilitating cyber-crime activities,while lacking a certain degree of legitimacy at the legislative level,is indeed a necessity in the cyber context and does not violate the principle of the modesty of criminal law,provided that the criteria for judicial application of this crime are clearly defined.