Research On The Judicial Determination Of The Crime Of Helping Cybercrime

In order to deal with the high incidence of cybercrime and solve the problems that arise in cybercrime,the Amendment IX to the Criminal Law added several crimes related to cybercrime.The crime of helping cybercrime is one of them.After six years of practice,there have been several problems in this crime’s judicial application.Beginning with the problems found in the judgment,this article discusses the specific connotation and determination of the crime’s elements,and solves the problems in the crime coincidence,with a view to standardizing the judicial application of this crime.The first chapter summarizes the judicial application of this crime from three angles which are the cases’ quantity,defense opinions and adoption,and competition situation.There are three main problems in the judicial application.The first problem is that the standard of “cognition” is unclear.The second problem is that the judicial interpretation of “serious circumstances” deviates from the principle of responsibility.The third problem is the misconception of the coincidence of this crime and other crimes.The second chapter explains the connotation,degree and identification method of“cognition”.It is believed that “cognition” includes sure cognition and actual cognition.The object of “cognition” should be an act that conforms to the objective constitutional requirements of the criminal law.Judicial interpretations of “cognition”should be regarded as inferences,not presumptions.Therefore,in judicial application,it is necessary to avoid consequence theory,pay attention to a comprehensive examination of objective facts,and use rational person’s cognition to eliminate reasonable doubts and prove the establishment of “cognition”.The third chapter analyzes the actual mode and direction of the judicial interpretation of “serious circumstances”.Combined with the nature of the conviction circumstances,it is clear that the “serious circumstances” of this crime should be an objective element that reflects the danger of the crime.Therefore,based on the principle of infringement of legal interests and the principle of liability,the judicial interpretation should be adjusted,and the content that cannot reflect the danger of the crime should be eliminated.The defendant should have the awareness of the serious result.The fourth chapter analyzes problems in the coincidence of this crime and other crimes.First of all,in the determination of the same behavior,it is clear that the constitutive element theory should be used as the method of judgment.Secondly,on the issue of the determination of several crimes,clarify the relationship between this crime and related judicial interpretations,and believe that the judicial interpretations based on the one-sided accomplice theory has not broken the principle of legally prescribed crimes and punishments,and this crime does not hinder their effectiveness.Finally,in the application of the rules of the competition of the crime,it is clear that the rules are uniformly applied without distinguishing specific types,and it is believed that the principle of choosing the older and the lighter crime and the rule of choosing the heaviest are not contradictory.