Analysis Of Some Judicial Problems In The Crime Of Helping Information Cybercrime

In order to regulate the increasingly rampant cybercrime,the Criminal Law Amendment(IX)added the “crime of helping information cybercrime” as Article 287 bis of the Criminal Law,and criminalized the cybercrime activities.However,once the amendment was promulgated and implemented,not only the theoretical community has disputed the necessity of the establishment,but the application of this crime in judicial practice faces many difficulties.It is an important way and urgent task to rationally regulate the cybercrime help behavior under the existing criminal law system by objectively analyzing some difficult problems applicable to the judicial application of this crime.In addition to the introduction,the main body of this article is divided into four parts.The first part introduces and studies the basic situation of the crime of helping information cybercrime.Chinese legislation on the regulation of cybercrime's help behavior has evolved from the "combination evaluation model" to the "helping behavior is committed"-helping the crime of information cybercrime.According to the judicial cases related to this crime,the application of this crime is increasing,but there are still many applicable dilemmas,such as unclear constituent elements,incompatibility of crimes and punishments,and even different judgments of similar cases.The root cause is the lack of proper interpretation of the legal provisions.The second,third and fourth parts respectively analyze the three problems in theprocess of applying the crime of cybercrime in information and provide a solution path.The second part analyzes the understanding and recognition of the “knowing” in the constituent elements.As for the meaning of the concept of "knowing",there are mainly three viewpoints of "confirmation","confirmation" and "may know","confirm" and "should know" in our criminal law theory.The “knowing” and “should know” explanations deviate from the correct path,obscuring procedures and entities.The “confirmation” interpretation violates the purpose of the legislation and the judicial operation is difficult.The correct meaning of "knowing" should reflect the subjective real state of the perpetrator.The "knowing" of this crime should include "really know" and "probably know." For the object of knowing-_"crime"-there are restrictions on the interpretation(strict interpretation)and expansion of the interpretation of the dispute.In combination with the alienation model of new crimes,in order to regulate the serious social harm caused by the technical help behavior of cybercrime,the "crime" should be expanded and explained.As long as the perpetrator has implemented the act of infringement of legal elements that meet the requirements of criminal acts,The crimes helped are convicted and punished.In the determination of "knowing",the criminal presumption method is adopted.In order to prevent ambiguity,the standard of "should be known" should be abandoned.After reference to the judicial practice of presuming subjective knowledge in China after 2009,the principle of comprehensive recognition should be adopted,and all the facts of the case should be combined with the characteristics of the case.Comprehensive measurement with evidence.In order to prevent the conclusion from being absolute,the perpetrator is allowed to refute through reasonable explanation,that is,if there is evidence that he does not know,he can deny the conclusion of "knowing".The third part analyzes the understanding and application of the "severe serious" elements of the crime of helping information cybercrime.For the attributes of "serious circumstances",there are mainly three viewpoints: "construction requirements","construction requirements",and "prompting rules".The correct attribute of “serious circumstances” should be a comprehensive complement to the constituent elements.The attribute of "serious circumstances" determines that it is both a condition for conviction of this crime and a path of conviction for this crime.The correct application of "serious circumstances" can balance the relationship between the criminal law of cybercrime and technological innovation in the network age.It will not only expand the scope of punishment,but will even narrow the scope of punishment and ensure fair and reasonable judgments.The judiciary has determined that the "severe circumstances" should not directly apply the number of crimes committed and the amount of illegal income to conduct a single quantitative evaluation.In particular,it is necessary to adopt a cautious and comprehensive attitude toward the determination of "serious circumstances" in the determination of network neutrality.The judiciary should exert its discretion and initiative,and combine the specific circumstances of the case and all subjective and objective factors to comprehensively identify whether the information cybercriminal technology assistance behavior constitutes a “serious situation”.The fourth part analyzes the problem of the number of crimes.Taking the crime of fraud as an example,there is something wrong with the handling of the concurrence problem caused by this crime in judicial practice.It should be clarified that in the case of unilateral knowledge,the crime of helping information cybercrime(this crime)is a special law.Compared with the judicial interpretation and related opinions,the provisions on the crime of fraud are jointly criminalized.In the case of concurrence,this crime should be given priority.In the case of conspiracy,the actor constitutes the imaginary competition of the common crime of this crime and the crime of conspiracy,and the provisions of Article 287 bis,paragraph 3 of the Criminal Law apply.The understanding of the phrase “simultaneously constituting other crimes” has traditional and confined views.The confined separates the theory of imagined competition and is contrary to the purpose of legislation.It should be clear that the imagined concurrence is a sufficient condition for “graver crime”principle,and that the treatment of “simultaneously constituting other crimes” should follow the consistent method of imagining competing offenders,and make routine and simpleinterpretations of criminal law.It is not necessary and should not distinguish whether the statutory penalty for accomplice crime is higher than the crime.