On The Criteria For Determining "Knowledge" In The Crime Of Helping Information Network Criminal Activities

In recent years,China’s information network has entered a stage of rapid development.Thus giving rise to a large number of information network crimes,while extending the criminal chain of helping information network crimes.The amendment to the Criminal Law of the People’s Republic of China(IX)was adopted in 2015,which added the crime of helping information network criminal activities,but it has not been applied more often in judicial practice.There has been a steep increase in the application of the crime of helping information network criminal activities in the past two years.As a key element in the determination of the subjective aspect of this crime,"knowledge" is an important factor in limiting the scope of incrimination and is related to the reasonable scope of application of this crime.Through the study of cases on the Internet of China’s judicial documents,it was found that the current judicial application of this offence presents the problem of inconsistent standards for the determination of "knowledge",specifically there are three standards for the recognition,namely "knowing clearly ","should knowing","possible knowing ".In judicial practice,the proof of the subjective elements of the offender is neglected,and the offence has become a subordinate offence to other offences because of its simplicity.According to the principle of consistency between the subjective and objective aspects of criminal law," knowledge " as a subjective element of the crime should play a certain role in qualifying the objective aspects of the crime,excluding cases where the objective act is committed without subjective criminal intent.The offence of helping information network criminal activities is an act of aiding crime,so the subjective "knowledge" of the offence should be the same as the knowledge element of aiding intent,and the standard presented by comparing the two is the same as the actual standard of "knowledge" of the Crime of helping information network criminal activities in judicial practice.In contrast,in terms of both factual and normative understanding,the qualifying role of "knowledge" in this crime has not been exercised in judicial practice.The existence of multiple interpretative approaches to criminal law means that different interpretations of the same term may be reached.From the point of view of textual interpretation,the narrowest meaning is obtained,namely " knowing clearly ".While from the point of view of historical and systemic interpretation,the interpretation of " should knowing " can be concluded.From the point of view of purposive interpretation,the objective and subjective elements of the offence are set in such a way as to unify the two functions of human rights protection and social protection,and the adoption of the criterion of " knowing clearly " therefore better reflects the focus of the expression "knowledge" on the function of human rights protection.It is precisely because of the different criteria for determining "knowledge" from the four perspectives of contextual,systemic,historical and purposive interpretations of the crime that different extensions of " knowledge " derived from the criteria for determining.Resulting in the crime of " knowledge " qualifying role in judicial practice has not been specifically achieved.In order to ensure that the crime of helping information network criminal activities can be applied within a reasonable range in judicial practice,the subjective "knowledge" should be reasonably limited.The standard of "knowledge" should be returned to the standard of "knowing clearly ",which is centred on the interpretation of the text.The standard of " knowing clearly " should then be used as the basis for defining the specific content of "knowledge" of the crime,understanding "crime" as "criminal conduct".The offence is defined in the sense of "criminal conduct".Limiting "committing" to after the assisted person has "committed the crime".The knowledge of the offence is included in the process of determining "knowledge",the differentiation of responsibility is achieved,and the offender may be considered not to have "knowledge" according to his actual circumstances.The offence can be criminalised if the perpetrator is not considered to have "knowledge".The time for determining "knowledge" of the offence is defined as when the person assisted has already begun to commit the crime.