Research On The Normative Attributes And Judicial Identification Of The Crime Of Assisting Information Network Criminal Activitie

The Criminal Law Amendment(IX)added the crime of helping others in information network crime,and defined as an independent crime those who knowingly provide help to others in information network crime and comply with serious circumstances.However,due to the short time of the establishment of the crime,the relevant laws and regulations are not perfect,and there are still deviations in the understanding of the practical departments in the specific identification process,resulting in the normative attributes and judicial identification of the crime still have difficulties.Based on the norms of criminal law and judicial practice,this paper studies the normative attributes of the crime and several issues of judicial confirmation,which are mainly composed of the following four parts.The first part,help information network crime crime of normative attributes.As for the normative attribute of this crime,there are three viewpoints: the theory of sentencing rules,the neutral theory of helping behavior and the legalization of helping behavior.This paper argues that,in view of the unique harmfulness of cybercrime helping behavior,it is necessary to explore the normative attribute of the crime with the legislative purpose as the breakthrough point.This paper concludes that the normative attribute of this crime is the legitimization of helping behavior through comparative demonstration.The second part,the identification of the objective factors of the crime.Firstly,the types and ways of helping behaviors are discussed based on the technologies and services that network crimes rely on.Secondly,the connotation of "crime" in the crime of "using information network for others to commit a crime" is discussed,and it should be in line with the meaning of criminal behavior.Finally,the author sorts out the misunderstanding of the determination of "serious circumstances" in practice.As the core element of limiting incrimination,"serious circumstances" should be comprehensively considered in the specific determination from the perspectives of the number of acts carried out,the amount of profits,the number of illegal transactions,whether serious consequences are caused and so on.The third part,the determination of the subjective elements of the crime.This paper holds that "knowing" is the core of subjectivity,and in order to prevent the improper limitation of the punishment scope of the act of helping,it should be clarified that "knowing" includes clear knowing and presumptive knowing,and should know and may know that does not conform to knowing.The determination of "knowing well" should adopt the judicial presumption method,and carry on the comprehensive examination combining with the doer’s occupation,working experience and specific behavior and other factors.The content of "intent" of this crime also restricts the punishment scope of helping behavior.In order to curb network crimes,both direct intent and indirect intent should be punished.The fourth part,the form of accomplice and concurrence of the crime.This paper holds that on the basis of the legalization of helping behavior,the aiding and abetting of helping behavior will be set up as aiding and abetting offenders.When the act of helping constitutes both the crime and the joint crime,we should weigh and choose the charge with the legal penalty to convict.When there is competition and cooperation between this crime and the category of crimes,this paper believes that the perpetrator should be identified as this crime or refuse to perform the obligation of information network security management according to whether the perpetrator is aware of the network criminal activities of others when receiving the notice of supervision.According to whether the helping behavior occurred in the implementation stage or the preparatory stage,it was identified as this crime or the crime of illegal use of information network.In the criminal activities involving "two cards",according to whether the perpetrator in addition to providing the "two cards" also carried out the help to withdraw cash,cash and other acts,respectively identified as the crime or cover up,conceal the crime.