Criminalization Of Net Neutrality Helping Behaviors

The network neutral assistance behavior based on internet technology is a "doubleedged sword".It has not only promoted the development of technology,but may also be used as a "booster" for cybercrime.Since the promulgation and implementation of the Ninth Amendment to the Criminal Law,it has set the charge of being the principal offender of network crimes,and subsequently issued some relevant judicial interpretation of network crimes.However,there are still controversies in the academic and practical fields regarding the condensability and incrimination path of network neutral assistance behavior.Therefore,it is necessary to study the condensability and incrimination path of network neutral assistance behavior.From the analysis of the phenomenon of network neutral assistance behavior,compared to traditional neutral assistance behavior,network neutral assistance behavior has the characteristics of concealment and independence.It should be classified into network access services,network content services,and network platform services based on their functions.The punitive nature of network neutral assistance behavior is a prerequisite for discussing its criminalization.The theory of punishment includes the theory of comprehensive punishment and the theory of limited punishment.The former advocates that when there is a causal relationship between the behavior and the result,and there is a subjective joint intention,network neutral assistance behavior should be recognized as an accomplice.The theory of comprehensive punishment has an unavoidable "defect in comprehensive punishment",so the viewpoint of limiting punishment should be adhered to.There are theoretical controversies in the theory of restrictive punishment,including subjective theory,objective theory,and compromise theory.The subjective theory emphasizes subjective factors,the objective theory emphasizes objective factors,and the compromise theory adopts the principle of unifying subjective and objective considerations,but both of them are inconsistent with the general logic of criminal reasoning.Therefore,the principle of punishment should be based on objectivity first and then subjectivity,followed by a sequential arrangement of various factors at the subjective and objective levels,in order to properly handle penability.On the basis of punitive evidence,firstly,the charges related to network neutral assistance behavior should be dealt with.For related crimes that constitute accomplices,if there are special circumstances such as simultaneously committing two new charges,simultaneously committing both accomplice charges and new charges,three overlapping charges,and so on,they will be dealt with according to the circumstances.If there is a joint act,it shall be punished as an accomplice;If there is a joint act,joint intention or conspiracy,it shall be regarded as an accomplice and punished,and criminal responsibility shall be borne;If both the charges of accomplice and the newly established charges are found to be in conflict with the law or imagination,one of the serious crimes shall be punished;Violation of two new charges simultaneously,with overlapping legal provisions,shall be punished in accordance with the principle of overlapping legal provisions;Three competing parties shall be punished for one felony.If it meets the constitutive requirements of one-sided accomplice,it can also be established as a onesided accomplice.Coexistence within the same statutory penalty range shall be given priority in the application of accomplices.Secondly,the basic position of criminalizing network neutral assistance behavior should be established,that is,the position of supplementary application for individual offenses and priority application for joint offenses.Deriving from the path of accomplice to the path of criminalization,establish a two-level thinking framework,and apply the processing approach of prioritizing the application of accomplices when convicted,and supplementing the application of two new charges.Based on this,solve the problem of intersection with accomplices in the criminalization of network neutral assistance behavior.Finally,the method of type incrimination should be adopted to address network neutral assistance behavior,which can be divided into three types: network access service providers,network content service providers,and network platform service providers.In terms of network information processing,network access service providers do not have the authority to edit,modify,or review the information published by network users,but only bear certain prudential obligations and legal responsibilities in certain circumstances.Network content service providers release information according to their own needs.During the information release process,the audience does not actively search for network information content,but receives it through push,or users can self edit and publish information content.Network content service providers have a more cautious obligation to pay attention to the information content within their field.Network platform service providers fall between the two types of service providers in terms of duty of care.When the three are convicted,starting from the objective aspect of behavior and the danger created,determine whether there is a causal relationship,and combine the subjective aspect of cognitive factors and willpower factors to judge.Then,determine the crime based on the compliance of the crime elements.