The Cognizance Of "Knowing" In "Knowing That Others Use Information Network To Commit Crimes"

The establishment of the Crimes of Aiding Information Cybercriminal Activities is based on the subjective component of "knowing that others use information network to commit crimes".Through the analysis of judicial judgment samples,it can be found that the cognizance of "knowing others to commit crimes by using information network" is one of the main controversial points in cases of aiding information network crimes,which directly affects the application effect of the crime of aiding information network crimes.Specifically,besides the introduction,this paper is divided into five parts:The first part: The problem of judicial determination.In judicial practice,there are four problems in determining whether the perpetrator "Knows" others’ use of information network to commit crimes.First,the basic connotation of "Knowing" is not explained in combination with the characteristics of the Crimes of Aiding Information Cybercriminal Activities,and the concepts of "Should know","Possibly know" and "Know or Should know" are mixed.Second,the concept of "Crime" is not explained in combination with the cognitive characteristics of helping people in information network crime cases,which leads to the inclusion of some behaviors without criminal illegality in the category of "Crime";Third,it is difficult to distinguish the Crimes of Aiding Information Cybercriminal from the "Knowing" of its related crimes,the improper application of the concurrence rules and the confusion in the determination of charges;Fourthly,in specific cases,the presumption of "Knowing" lacks concrete analysis,which leads to the unclear status of the cognizance of "Knowing".The second part: The basic connotation of "Knowing" in "knowing others to commit crimes by using information network".As far as the relationship between "Knowing" and "Possibly knowing" and "Should know" is concerned,whether in legislation or theory,"Knowing" in "knowing others to commit crimes by using information network" should not include "Possibly knowing",and its substantive connotation should be "Knowing or Should know".The third part: The understanding of "others use the information network to commit crimes".The content of "Knowing" behavior is the criminal behavior of "others using information network to commit crimes",and it also covers the illegal cognition of self-help behavior.The cognition of both should reach a relatively specific level.In addition,"Crime" refers to an act that conforms to the objective constitutive requirements of a crime,excluding administrative violations and civil violations.The perpetrator must realize that "others have committed a crime by using the information network",otherwise the criminal result of others cannot be attributed to the perpetrator.The fourth part: The time node and direction of "knowing".The "Knowing" of "knowing that others use the information network to commit crimes" is a one-way cognition beforehand or in the process.Two-way "Knowing" in advance may form a common intention,and afterwards "Knowing" may form other afterwards-assisted crimes such as concealing and concealing the crime proceeds and the crime of the proceeds of crime.The fifth part: The proof of "knowing others to use information network to commit crimes".When the presumption proves the "Knowing" of this crime,we can draw lessons from the objective imputation theory,and judge whether the act creates risks that are not allowed by the law,whether the risks are realized in the result,and whether the actor performs the corresponding duty of care.At the same time,according to the specific division of labor,the length of the crime and the professional characteristics,the presumption is made at different levels.The conclusion must reach the level of excluding reasonable doubt,otherwise,a decision in favor of the defendant should be made according to the principle of "Benefit the defendant when in doubt" to avoid the excessive expansion of judicial power.