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

The crime of helping information network crime is established under the background of the gradual formation of the "black and gray industrial chain" in the Internet field,which has brought new challenges to the investigation and examination of crimes by judicial organs.Based on the increasing harmfulness and independence of network technology help behavior,legislators set up this new crime to respond to the new social situation.At the beginning of the establishment of this crime,the research of the theoretical circle focused more on the discussion of its nature,and formed more representative views such as "the perpetration of helping behavior","the punishability of neutral helping behavior" and "the theory of sentencing rules".The different definitions of the nature of this crime also directly affect whether it constitutes this crime and the treatment of joint crime.In judicial practice,the application rate of this crime has been extremely low in the four years since its establishment in 2015.In the first three years,it even did not exceed 100 cases nationwide.Until 2020,the application rate increased exponentially,and soon exceeded 1000 or even10000 cases.The disputes in theory and the high application rate in judicial practice all illustrate the necessity of studying this crime,clarify the understanding of the constituent elements of this crime,unify a set of effective judicial identification standards,and correctly distinguish this crime from easily mixed crimes,so as to realize the important role of this crime in attacking network crime from the source.First of all,there are difficulties in how to understand "knowing" and how to prove "knowing"."Knowing well" includes definite knowing and general knowing.The "knowing well" of this crime is not equal to the "knowing well" in joint crime,and its degree is lower.It is a kind of general knowing well.We should not only prevent excessive reliance on verbal evidence,but also prevent objective imputation.In the identification method of "knowing well",it affirms the rationality of presumption of knowing well.Secondly,the definition of whether the helped person’s behavior needs to meet the crime standard is confused.Before the establishment of this crime,the relevant acts are mostly dealt with in accordance with the help of other crimes.After the establishment of this crime,its objective behavior is still to help the upstream crime.Therefore,the severity of the upstream crime is directly related to the conviction and sentencing of this crime.Since the article of the law clearly states that the helped person committed a "crime",it should not include general illegal acts.However,it is not appropriate to limit the helped person’s behavior to the behavior with all the constituent elements stipulated in the specific provisions of the criminal law,resulting in the improper limitation of the punishment scope of this crime.In addition to the fact that the helped person constitutes a crime and needs to be verified,the crime of helping information network crimine itself also needs to meet the requirements of "serious circumstances".Therefore,there is a standard of "double amount of crime" in this crime.Thirdly,there are great similarities between the objective acts of accomplices in this crime and the crime of fraud,which need to be correctly distinguished.Through case analysis,starting with subjective knowledge and assisted by objective behavior,this paper summarizes the operable distinction standards.Finally,when distinguishing this crime from the crime of concealing and concealing the crime,The criminal form of the upstream crime affects the nature of the help behavior of the two crimes.The latter is enough to regulate the help behavior after the fact,and it is not suitable to introduce the former to regulate the help behavior after the fact,which makes it difficult to distinguish the two crimes;The perpetrator of the two crimes has different degree of knowledge of the upstream crime,and the degree of knowledge of the former is lower than that of the latter;The degree of illegality of the objective acts of the two crimes is different,and the degree of illegality of the latter is stronger.