On The "knowledge" Of The Crime Of Helping Information Network Criminal Activities

According to the analysis of die judicial decision,the author found that the application rate of the Crime of Helping Information Network Crime in in judicial practice is low.There are two reasons:First,it is difficult to distinguish the"knowing" of the crime from the "knowing" of traditional accomplice,and the second,the "knowing" is not clear,the "neutral helping behavior" is not "neutral",and the definition of the" crime" is not clear,these problems are in fact closely around the"knowing" of the crime.In order to dig deeply the theoretical basis of "knowing" in the Crime of Helping Information Network Crime,this paper starts with the general theory of "knowing",and analyses several controversial issues in the theory,then draws the following conclusion:there are both connections and the differences between the "knowing" in the general provisions and the "knowing" in the specific provisions of the Criminal Law;"knowing" includes illegal consciousness;"should knowing,belongs to "knowing";"possible knowing" is a general understanding and therefore does not belong to "knowing";"knowing" can be proved by direct or indirect evidence,and presumption can be applied in special cases.Nevertheless,legislators have made independent legislation on Crime of Helping Information Network Crime actually endows this crime with a special nature,that is to say,help behavior being offender.Thus,the "knowing" of the crime can not simply apply the general "knowing" theory,but needs more specific analysis.The author believes that based on the characteristics of the Crime of Helping Information Network Crime the content of "knowing" in the crime should include three aspects:one is "knowing others to use information network to commit crimes",here the "implementation"includes the implementation behavior in the preparatory stage,and the "crime" refers to the illegal and criminal acts;the other is "knowing that one's own behavior provides help to others",including the result of infringement of legal interests caused by the helping behavior and the causal relationship between the two:Third,"Knowing that one's actions are illegal".In addition,if the actor knows that it is a neutral act,the establishment of "knowing" can not be hindered.The degree of "knowing" in this crime only includes "knowing" and "should know",not "knowing possibly".Through the determination of the content and degree of "knowing" in this crime,the author distinguishes the "knowing" of the crime from the "knowing" of accomplice of traditional network crime.If the perpetrator has conspiracy,is able to recognize the inevitable illegality of other people's service requirements or the super-category nature of his own behavior,he should be recognized as having the "knowing" of the relevant traditional accomplices.In addition to,even if the perpetrator can xinderstand the possible consequences of his own behavior but indulge such consequences to occur for various purposes,he can only be identified as the "knowing" of this crime.Besides using evidence to prove "knowing" in the crime of Helping Information Network Crime,presumption in the criminal law can also be applied,but the order of direct proof-indirect proof-presumptive proof must be followed,that is to say,presumption can only be used if direct and indirect proof fail to prove the facts.The application of presumption in this crime should adopt the way of incomplete enumeration and comprehensive identification,and consider the educational background,professional experience and other information of the actor comprehensively.Generally speaking,the following behaviors are normally associated with "knowing":the charge was obviously abnormal;have received public tip-offs or rectification opinions from relevant departments,or have been subjected to administrative or criminal penalties for similar acts;knowing that others accept network technology services with mendacious identity information distinguished that other people use the network to commit crimes according to the relevant web blog or modified or deleted the relevant network log data when the relevant departments investigate the related network crimes.Therefore,if the perpetrator can not make a reasonable explanation for these act,it can be presumed that he knows that others use the information network to commit crimes,except that the perpetrator has evidence to prove that he was deceived.