| In the past three years,judicial interpretations and normative legal documents related to the crime of aiding information network criminal activities have been issued one after another,which has provided corresponding basis for the judicial application of this crime,especially providing guidance for judicial practice judgment of "knowing".With the implementation of the relevant policies to crack down on cybercrime,the number of relevant precedents continues to rise,at the same time,some new problems have emerged in the determination of "knowing",and the current "knowing" that helps the crime of information network criminal activities is facing the intersection of new and old problems in judicial determination,this article is based on the problems that arise in the judicial application of "knowing" determination,and then analyzes the possible reasons behind it,and then returns to practice to propose feasible countermeasures,hoping to solve the problem of "knowing" judicial determination as much as possible.In addition to the introduction and conclusion,this article is divided into three parts:Part I: "Knowing" Judicial Determination.According to the reading of judgment documents,there are the following problems in judicial practice: first,the judgment documents simplify the argument of "knowing";The second is that the requirements for determining "knowingly" are vague,third,the judgment documents do not have consistent arguments on "others have committed crimes",and fourth,the time and direction of "knowing" are not clear.The second part analyzes the reasons behind the judicial determination problem from the two levels of confusion in theoretical understanding of "knowing" and judicial practice operation.The third part puts forward feasible countermeasures for judicial practice to determine "knowledge",first,the actor’s understanding must at least meet the "actual knowledge" at the level of legal facts;Secondly,for the elements of the "knowing" content of this crime,it is clear that the perpetrator only needs to recognize the criminal act of others,clarify that the time of "knowing" of this crime is prior or in the event,and "knowing" means that the perpetrator unilaterally recognizes that others have committed the crime;Finally,it proposes to construct a comprehensive identification method consistent with subjectivity and objectivity,so as to provide reference for judicial practice to determine "knowledge". |
