A Study On The Judicial Determination Of Telecommunication And Internet Fraud Accessory

Telecommunication network fraud crime is a novel crime which appears with the rapid development of telecommunication network.Under the deterrent of criminal law,there are still many criminals who know that others will or may carry out telecom network fraud,but still provide help for them and make profits by doing so.Therefore,it is particularly important to study the judicial identification of helping criminals in telecom network fraud crime.The identification of accessory could be judged from the following three aspects: accessory attribute,helping behavior and helping intention.The criminal,which generally adopts non-contact mode,has complicity and group nature.The object of telecom network fraud crime group is usually not specific.At present,in the judicial practice,there are still difficulties in judicial identification of helping criminals.In China’s criminal law,there is a big difference between assisting the offender and committing the crime by oneself.They perform different behaviors and have different outcomes.The acts of providing assistance in telecom network fraud mainly include providing technical services and helping to withdraw money.Under what circumstances does the act of providing technical service for the telecom network fraud crime constitutes a crime would be particularly important;From an objective point of view,whether the act of helping to withdraw money constitutes a helping crime would depend on the time point when the act of helping take effect.From a subjective aspect,the withdrawal behavior requires the withdrawal person to be aware of that the money is from the telecom network fraud activities,and the awareness of the specific details and content of the crime is not required.Under normal circumstances,there is no difficulty in defining the helper and abettor in joint crime,and they have different behavior limits respectively.This paper analyzes the differences between the helper and abettor in both objective and subjective aspects through typical cases.From an objective point of view,in the telecom network fraud crime,the nature of the helping behavior and abetting behavior is different.From the subjective aspect,they are different in cognition factor and will factor.Since the telecom network fraud crime is often shown as a group crime,it is reasonable to believe that the "strategist" who is mainly responsible for the planning in this kind of crime plays a major role in the whole crime,and should be identified as an organizational behavior,and assume his/her criminal responsibility according to the main offender.According to the general theory of the stop mode of the helper,the "out of control theory" should be adopted as the standard of identifying the helper in the telecom network fraud crime.From the aspect of the infringement of legal interests,this theory is more in line with the purpose of punishing crimes and protecting human rights.On the premise of "out of control theory" as the identification standard,this paper further distinguishes the attempted crime and the discontinued crime in the telecom network fraud crime,and focuses on the time of the occurrence and the reasons for the uncompleted crime.Then it puts forward the conclusion that using the theory of accomplice separation to perfect the theoretical framework of accomplice in telecommunication network fraud.