The Nature And Development Of The Crime Of Assisting Network Crime

For the legislative purpose of more fully cracking down on Internet criminal activities and reducing the burden of proof on judicial organs,a new charge was added to the Criminal Law Amendment(9)--the crime of helping information network criminal activities.However,since the adoption of the Criminal Law Amendment(9)in 2015,the theoretical circle has been divided on the nature of this crime.On this crime alone,there exist many viewpoints,such as "theory of absolute principal offender","theory of sentencing rules" and "theory of least subordination".The contradictions of these different views are mainly reflected in the question of whether "network help behavior" has independent infringement of legal interests.According to different answers to this question,the academic views can be roughly divided into three categories: the theory emphasizing "independence",the theory emphasizing "subordination" and the "compromise theory".However,it seems that these three theories can not accurately define the nature of "crime of assisting information network crime",nor can they include all the situations faced by this crime in practical application.The fundamental reason should be attributed to the practical orientation of the crime legislation,the decentralized characteristics of the network crime activities and the abstract nature of the constituent elements of the language,which led to the characteristics of the "mixed" crime of "assisting information network crime activities".In order to solve this problem,we should start from adhering to the essential characteristics of crime,that is,adhering to the infringement of legal interests,and divide the "network helping behavior" that can constitute the "crime of assisting information network criminal activities" into the types that can be punished as accomplices and the types that can be independently committed.The former’s legal interest infringement is dependent on the assisted behavior to establish a joint crime and cooperates with the crime of "assisting information network criminal activities",while the latter is independent of its infringement on the public order of information network and establishes the crime separately.In this way,even if the latter’s helping behavior and the assisted behavior cannot be proved to have a close relationship,it can be criminalized with this crime.At the same time,it excludes the possibility of criminalization of "neutral helping behavior" in the case that it cannot constitute an accomplice,avoids the controversy that "neutral helping behavior" may be excessively attacked in the information network environment in various academic theories,and avoids the awkward situation that this crime is difficult to apply,so as to ensure the realization of the legislative purpose of this crime.However,whether the independence infringes on the public order of the information network can be comprehensively judged from the routine,frequency of the "network help behavior",the amount of profit and other aspects.Compared with the classification based on the formal characteristics of "helping behavior",this new perspective is more conducive to guiding judicial practice activities from the perspective of legal hermeneutics,so as to ensure the full realization of legislative purposes,combat the help behavior of Internet crimes,while maintaining the modesty of criminal law,and avoid causing damage to the stability of normal Internet environment.