Research On The Limitation And Application Of The Crime Of Assisting Network Information Crime

As a "hot crime" in recent years,the crime of facilitation has achieved remarkable results in combating cybercrime.However,under the positive feedback,the crime of facilitation also has the hidden worry of undue expansion,which requires a timely and restrictive interpretation of the constituent elements of this crime to prevent its further undue expansion.This article focuses on the determination of the meaning of "knowingly",the specific analysis of "assisting conduct" and the reasonable definition of "aggravating circumstances",with a view to providing the judicial practice This article is divided into four parts.The first part is an overview of the offence of aiding and abetting.The author firstly reviews the legislative evolution of the offence of aiding and abetting,and summarises the judicial interpretations.The analysis reveals the forms of expression of the offence of facilitation in legislation and judicial interpretation and the reasons for this situation;secondly,the conceptual definition,constitutive features and legal nature of the offence of facilitation are then discussed.The paper argues that the types of conduct of the offence of facilitation can be divided into: technical support,provision of advertising and promotion,and payment and settlement from the situations listed in the law.The constitutive features of the offence of facilitation are discussed in terms of independence in terms of legislative attributes and subordination in terms of natural attributes.In terms of the legal nature,after listing and discussing the three main doctrines on this offence,it is considered that the offence of facilitation should be a punishable neutral act of assistance,rather than a positive criminalisation of the act of assistance;The second part is the current status of the undue expansion of the offence of aiding and abetting.Firstly,the current situation of undue expansion is sorted out on the basis of empirical research on cases related to this offence,which presents the current situation of judicial application of this offence in a more visual way.The data sources are presented and the study is analysed in graphical form based on the distribution of cases by region,means of offence,court hierarchy,and types of predicate criminal conduct.As a result of the analysis,it is found that the offence of aiding and abetting has a tendency to expand.Secondly,the reasons for the inappropriate expansion were analysed,mainly due to the diversity of criminal patterns,the ambiguity of the legislation and the inappropriate promotion of the "dynamic view of justice".Finally,the dangers of the expansion of the use of the offence of facilitation are discussed.Based on the empirical analysis in the first section,it is found that the dangers include the difficulty of achieving the same sentence in the same case,the blurring of the boundaries between the offence and other offences,and the blurring of the criteria of whether the offence can be criminalised or not,which have caused great obstacles to the application of justice in China and need to be addressed;The third part deals with the need for a restricted application of the offence of aiding and abetting.Chapter 3 builds on the overview in Chapter 1 and the discussion of the current situation in Chapter 2 to identify the problems in the current application of the offence of aiding and abetting.Firstly,there is the issue of "knowledge" of the offence of aiding and abetting,where the standard for determining "knowledge" is not strict and the "constructive knowledge" approach is flawed.The standard is lowered by equating "may know" with "knowing".Secondly,there is a problem with the determination of the act of assistance.The determination of the act of assistance is divided into two aspects: the act of assistance and the object of assistance.In the act of helping,there is a misunderstanding in the determination of the act of being helped.Finally,there is a lack of clarity in the determination of "aggravating circumstances" and the problem of bias in judicial application;The fourth part is the path of restricted application of the offence of aiding and abetting.The main purpose is to analyse the problems identified above in the light of the theory and to propose corresponding solutions.The first is the determination of "knowingly".On the one hand,the meaning of "knowledge" is defined within the scope of clear knowledge,i.e."knowledge" should mean definite knowledge.On the other hand,the determination of "constructive knowledge" is prudently applied,taking into account the three factors of presumption.Secondly,the definition of aiding and abetting is reasonable.The scope of punishability of "aiding and abetting" should be reasonably limited by taking into account the principle of subjective and objective consistency.The "crime" in the "act of being assisted" is restricted by discussing the three aspects of interpretation,composition and status,so as to achieve the objective of reasonably limiting the "crime".Furthermore,the definition of "aggravating circumstances" should be strictly controlled.The objective amount and the subjective maliciousness of the offence will be determined by a combination of objective and subjective models,thus making the application of the offence more reasonable.Finally,the competing issues of helping information network crimes.The author has chosen to distinguish between the crime of fraud,the crime of illegal use of information networks and the crime of concealing or concealing the proceeds of crime,which are most closely related to the crime of helping a letter in practice,in order to achieve the correct application in judicial practice and prevent the emergence of a mixed crime situation.