| In recent years,with the frequency of network crime,to help the application of the information network crime rate is rising year by year,but doesn't mean practice applicable rates for the interpretation of this crime is very clear,because most of the crime reasons things out the part of the judgment is very far-fetched,basic use close to the expression of Chinese law,not rules to guide to conviction.It can be seen from the judgment that the existing problems of this crime include but are not limited to the unclear boundary between this crime and other crimes,the difficulty in identifying "knowing" and the different standards for identifying "serious circumstances",resulting in the situation that there are great differences in the conviction and sentencing of the same cybercrime helping behavior.The root cause of these problems is that the nature of this crime has not been clarified.As for the nature of this crime,there are two powerful viewpoints in the theoretical circle:the criminalization of helping the offender and the sentencing rule.The former regards the network technology helping behavior with great harm as the punishment of implementing the behavior,and thinks that the technology helping behavior is no longer subordinate,which will lead to the infinite expansion of the crime circle and the imbalance of crime and punishment.Which based on the limiting properties said,don't think this crime from accomplice,is only for the technical help establish special sentencing rules of behavior,although the theory does not result in wanton crime ring expansion,but the theory can't cope with network crime different from traditional crimes in the new situation,it is difficult to help network crime committed to properly imputation.At present,the interpretation of this crime should follow an accomplice from the particularity of the limit--said minimum properties,as its accomplice gap between crime and punishment,also the one-sided accomplice should be introduced,that is,to eliminate the network crime helper and were punished helper mean lack of contact between the obstacle,the network crime accomplice imputation model of rational regression.To make clear the property of this crime can be better for the distinction between this crime and joint crime provides uniform standard: first,the helper has provided technical help,is implements the behavior of helping achieve "constitutive requirements of conformity degree and above,according to the minimum properties,technical service behavior belongs to the accomplice behavior,concrete is divided into two situations: first,if the behavior people committing crimes only provided technical help others,but not deeply involved in the crime of others,the helper only constitute this crime;Secondly,if the actor provides technical help for others to commit a crime and actively participates in others' crime,then the helper will constitute both the crime and the accomplice of other crimes.Second,in network crimes,the helper has provided technical services,but the aided has not yet committed the crime.According to the minimum dependency,the helper does not constitute the accomplice of this crime and other crimes.Similarly,clarifying the nature of this crime can also solve the problem that the constitutive elements of this crime--the standard of"knowing well" and "serious circumstances" is ambiguous.In the context of the least subordinate theory,the object of this crime,"crime",should be understood as a crime in the sense of the type of behavior in accordance with the constitutive requirements.In this way,the network service provider's illegal and responsibility can be separated from the criminal's illegal and responsibility,so as to achieve the purpose of this crime;Similarly,based on the theory of minimum subordination,it is not necessary for the principal offender to be convicted and sentenced by the court to determine the perpetrator to be "serious",nor for the principal offender to reach the degree of crime. |
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