The Judicial Application Research On The Crime Of Helping Cybercrime

Knowing that others use information network to commit crimes and provide technical support or help for their crimes,if the circumstances are serious,they shall be convicted and punished for the crime of helping cybercrime.The view of questioning the legitimacy of its legislation does not fully take into account the judicial practice of fighting against network joint crime.Facing the reality of the perniciousness and independence breakthrough of helping behavior in cyberspace,the strategy of treating accomplice as perpetration enriches and develops the handling rules of joint crime,and has important practical significance in blocking the loopholes of criminal punishment,eliminating the understanding differences of one-sided accomplice,actively preventing social risks,and improving the efficiency of prosecution.The object violated by the crime of helping cybercrime has duality,on the one hand,it violates the public order in cyberspace,on the other hand,it violates the object violated by the crime of being helped;The objective aspect is to provide technical support or help in other people’s criminal activities;Both natural person and unit can be the subject of crime;In the subjective aspect,the actor is required to “knowing that others use information network to commit crimes”,in which “knowing” should be understood as knowing clearly,and the possible and ought to knowing should not be included in the scope of “knowing”,and the “crime” in it should be understood as an act that complies with the provisions of the criminal law,and does not need to reach the degree of constituting a crime.We can solve the dilemma of subjective “knowing” through criminal inference and criminal presumption system,especially give full play to the advantages of criminal presumption system in subjective “knowing”,but we should also pay attention to the examination of contrary evidence.When the actor has a wrong understanding of other people’s criminal activities,it is necessary to make a specific judgment on whether the actor constitutes a crime according to the close relationship between the actor and the assisted object,whether the act creates a risk that cannot be allowed by the law,the possibility of realizing the risk,etc.The circumstances in “serious circumstances” should be considered atthe illegal level,not including the responsible level.In the determination,comprehensive evaluation can be made in terms of the number of the assisted objects,the amount of payment and settlement,the amount of illegal income,and the consequences caused by the crime of the assisted object.As for the neutral helping behavior in the form of business,we can comprehensively consider from the principles of risk distribution,the theory of legal interest measurement,the possibility of expectation,etc.,which is generally not considered as“serious circumstances”,so as to avoid excessively restricting national freedom and hindering the development of digital economy.The crime of helping cybercrime belongs to the typical circumstance crime,which has the situation of the attempt of crime,and “serious circumstances” is only the condition of the establishment of the crime,not the sign of the accomplishment of the crime.When the actor colludes with others,according to the different roles played in crime,it is usually difficult to constitute the abettor as the principal offender or the helper of the crime committed by others,and at the same time constitute the crime of helping cybercrime,it is not necessary to strictly distinguish the concurrence of law and imagination,and to uniformly convict and punish according to the heavier punishment.The crime of illegal use of information network is to treat preparatory crime as principal offender.It can be distinguished from the crime of helping cybercrime from the aspects of the object of regulation,the stage of crime and the purpose of action,etc.,for the cases that are really difficult to distinguish in practice,it should be identified as the crime of illegal use of information network first,which can reduce the difficulty of obtaining evidence and improve the efficiency of criminal prosecution.There are unbalanced sentencing phenomena in the judicial application of freedom penalty and fine penalty for the crime of helping cybercrime.In order to realize the standardization of sentencing,we should first determine the starting point of sentencing,then determine the benchmark punishment,and finally determine the order of sentencing.The amount of the fine penalty should be determined on the basis of the circumstances of crime and the ability of execution.In order to prevent cyber criminals from committing cyber crimes again,it is necessary to strengthen the application of occupational prohibition and prohibitionorder when punishing criminals who use occupational convenience to commit cyber crimes.