Research On Judicial Application Of The Crime Of Helping Information Network Criminal Activities

The crime of helping information network crime has been in a "sleep" state at the beginning of its establishment,and its application rate is not high.Until the release of relevant judicial interpretations and other relevant norms in the past two years,as well as the launch of the crackdown on the sale of telephone cards and bank cards,the application rate of this crime has increased rapidly.At the same time,due to the strong openness of the constitutive elements of the crime,the identification standard in judicial practice is not very unified and clear,and many problems have been exposed,such as the identification of the nature of cybercrime help behavior is not unified,the sentencing gap is too large,and the treatment of the disorder when cooperating with other charges.Therefore,it is necessary to further clarify the nature and constituent elements of this crime and put forward some suggestions on judicial application:This crime is an independent charge,the protection law for the information network management order.I think the requirement of the degree of knowledge in the constitutive elements should be "Knowing",need not reach the level of "Clear",including "knowing possible".And "Knowing" should be maintained in the form of presumption.The "Crime" should be a kind of behavior that accords with the requirement of criminal law,and only in exceptional circumstances can the requirement of the severity of crimes be reduced,in order to solve the problem of helping behavior criminalization in the"one to many" situation.The types of helping behavior for the establishment of this crime are not limited to the three types explicitly listed in the indictment.We should adhere to the same interpretation rule to determine the extension of helping behavior.The criminal helping behavior that are not explicitly enumerated must be equivalent to the helping behavior that are explicitly specified.The identification criteria of "serious circumstances" in constitutive elements still need to be further quantified.The elements of the plot can only be objective elements,and the elements such as subjective malignancy and personal danger should not be included.The relevant judicial interpretation stipulates that it is unreasonable to lower the threshold for those who have been punished for the implementation of illegal and criminal acts of information network.In addition,this crime and the crime of illegal use of information network,concealing the proceeds of crime and the proceeds of crime,hindering the management of credit cards and crime of fraud exist the problem of distinction and the situation of imaginative concurrence.We should specifically analyze the situation of each case,according to the doer’s subjective "knowing" content,the difference of criminal intention,the difference between the object of crime and the object of crime objectively,the doer’s participation time,way and degree of the helper’s criminal behavior and other different circumstances comprehensive consideration,sum up practical experience deal with it in a typological way.