The Limited Application Of Helping Information Network Crime

With the development of information technology,traditional crimes have gradually migrated to the network society.In order to address the judicial crackdown dilemma of traditional joint crime theory,the Criminal Law Amendment(9)has added the crime of aiding information network criminal activities.At the beginning of the establishment of this crime,the number of applications was extremely low,but since the judicial interpretation of the Crime of Helping Information Network Crime issued in 2019,the trend of its judicial application has been expanded rapidly,with explosive growth.In view of this abnormal expansion phenomenon,this article analyzes the reasons for the expansion of judicial application from practical cases,sorts out the solutions and existing shortcomings of various judicial dilemmas based on problem orientation,and proposes its own views to regulate the reasonable application of this crime.The first part of this article starts with judicial judgments from previous years.Firstly,it summarizes the judicial application of this crime from three perspectives:the number of cases,defense opinions,and judicial judgments.The application of this crime is showing an abnormal expansion trend,and the focus of controversy is on the determination of"knowing","committing a crime",and "serious circumstances".However,courts often do not adopt and do not discuss the defense opinions of the above disputes.Secondly,analyze the reasons for the expansion of judicial application from three aspects:criminal policy,legislative content,and judicial recognition.One is to provide a cover for cyber crimes that are difficult to crack down on,the other is that the constituent elements of the charges are broad and have a lot of room for interpretation,and the third is that the identification in judicial practice is not clear,mainly manifested in the low relevance of the presumption of"knowing",improper understanding of "others using information network crimes",and gaps in judicial identification of "serious circumstances".The corresponding applicable explanations will be provided in the second,third,and fourth parts of the following text.Finally,the author proposed a position of limiting interpretation and explained the reasons.The second part is limited and applicable in three aspects:the degree of "knowing",the presumption rules,and the content of understanding.The degree of ’knowing’ includes certainty and ought to know,but does not include the possibility of knowing.Among them,"should know" is a highly probable knowledge derived from objective facts to subjective states,which must be clearly defined by the presumption rules of the law and used with caution.The author analyzes the content and defects of the provisions on the presumption rule in the current judicial interpretation,and puts forward some suggestions for improvement,such as drawing on the "safe harbor rule","more than half rule",making clear the receiving standard,and investigating the supervision ability of the actor,and establishes three principles for the prudent use of the presumption rule,especially the"allowed rebuttal principle" to protect the rights of the actor.Finally,in terms of the content of knowledge,based on the nature of this crime as a statutory offense,the perpetrator must have a legal understanding.In terms of factual content,only an understanding of the criminal object and objective facts is needed.The third part discusses four aspects of "crime" in "others using information networks to commit crimes".One is to clarify that the establishment of aiding information network crimes follows the principle of "accomplice subordination",with the crime of the assisted person as the premise.The second requirement is that the crime committed by the assisted person only needs to reach the "illegality" of the three levels of crime,without being bound by the "accountability" requirement in the traditional "extreme subordination theory".The third criterion is that the crimes committed by the assisted should be based on the"modified restrictive subordination theory",and a comprehensive judgment should be made on whether the crimes committed by multiple assisted individuals in the "one to many" situation have comprehensively met the crime quantity standard.The fourth is to clarify that the crime committed by the assisted person must have already been committed,excluding crimes committed in the preparatory stage.Due to the discussion of the first two issues both involving the determination and limitations of the accomplice subordination theory,which is theoretically relevant,the same secondary title has been included in the structural layout.The fourth part discusses the issue of bias in the determination of "serious circumstances".This section involves less content.The author first clarifies that the"serious circumstances" clause of this crime belongs to the "overall evaluation element" in the convicted circumstances and should not include subjective evaluation content.Secondly,it sorted out the existing legal basis,analyzed its shortcomings,and proposed suggestions for improvement.