On The Identification Of "Serious Circumstances" Of The Crime Of Helping Information Network Crimes

Before the establishment of this crime,the main provisions to help the information network crime regulation is limited to the criminal Law of 285 and 286,but its governance effect is limited.Since the Criminal Law Amendment(IX)added the crime of helping information network criminal activities,the scope of application of the crime has been expanding,and the application rate has increased rapidly,which can reflect the attention and processing rate of the crime in practice,but it does not mean that the understanding of the crime in judicial practice has been very clear.By analyzing the judgment of this crime,it can be found that the identification of "knowing" in this crime is more difficult,and the judgment standard of "serious circumstances" is not uniform,which leads to the conviction and sentencing of the same helping behavior.The root causes are as follows: on the one hand,due to the rapid development of cyber crime means,it is difficult to determine the person and scope involved in this crime;On the other hand,the nature of the crime was not clearly defined.The academic circle has the following views on the qualitative of this crime: first,the theory of helping the offender to become a criminal;Second,the rule of sentencing;Third,the cover clause says;Fourth,the theory of independent crime.The first view takes the harmful network technology help behavior as the implementation behavior punishment,which will lead to the weakening of the type of accomplice and the infinite expansion of the crime circle.The second view is that the crime is not independent of accomplices,but sets a special sentencing rule for technical assistance.This theory can not effectively deal with the new situation of cyber crime which is different from the traditional crime,and it is difficult to properly assign responsibility to the accomplices of cyber crime.The third viewpoint holds that the focus of this crime legislation is the behavior that is difficult to be explained by the traditional theory of aiding the crime.The fourth viewpoint focuses on the serious degree of harm caused by the accumulation of massive low-damage behaviors through the model of "cumulative crime".In terms of independent crime,it is more secure to identify the circumstances in this crime as serious.The clarification of the qualitative of the crime can more accurately define the criteria for determining the seriousness of the circumstances in the expression of the crime.The "cumulative crime" mode is used to refine the criteria for the seriousness of the crime of information network crime,which can more comprehensively cover the relevant behaviors of the crime at present."Cumulative crime construction" mode evaluates the overall harm of behaviors by the calculation method of "massive behavior × low amount of damage".It can include behaviors that cannot be regulated by traditional accessory crime theory,so as to effectively solve the problem that the behaviors generated by the rapid development of cyber crimes cannot be regulated by criminal law.Through the combing of our criminal law and some judicial interpretations,we can see that the model of "cumulative crime" has already been used,such as "cumulative crime" or "cumulative crime",although some of its characteristics and "cumulative crime" pattern requirements are different,but its essence is a kind of "cumulative crime" pattern.The introduction of this model into the identification of the serious circumstances of information network crime activities can solve the current criminal law can not regulate the behavior,such as the "network water army" through the overall consequences of the behavior.At the same time,the crime of assisting information network crime itself is a legitimate legislation with the characteristics of "volume structure crime".The relevant judicial interpretation makes clear the criterion of the seriousness of the circumstances by the mode of "cumulative crime".The establishment of this crime should be separated from the principal offender;The establishment of this crime requires that the behavior has certain illegality,and in the requirement of "crime quantity",it needs to reach the corresponding degree so as to have certain possibility of punishment.In view of the problems arising from the current application of the crime of helping information network crime,the "volume construction crime" mode is used to refine the criteria for the seriousness of the crime,expand the penalty range of the crime by setting the supplementary amount and lowering the standard,and set different levels of legal punishment for different standards,so as to achieve the purpose of matching the crime,responsibility and punishment.After excluding the lawful income and expenditure of the perpetrator,the "total amount system" is adopted to calculate the involved amount of the perpetrator in the process of committing a crime to evaluate all the property involved.In the process of providing help,the doer’s daily helping behavior has been changed into criminal behavior,so it is more reasonable to use the "total amount system" calculation method.As for the details of the number of people involved,it is necessary to clarify the meaning of "assisted object",which is not the number of people within the same criminal group,but the criminals of different criminal groups or different cases,so as to avoid the infinite extension of the penalty range of this crime.For the determination of the serious consequences of this crime,we can refer to the results caused by the establishment of the downstream crime,in the downstream crime set up different levels of consequences according to the punishment.The social harm caused by the criminal act can also be taken as a reference to the serious consequences of the crime.The knowing of this crime can be divided into "knowing" and "should know" two kinds,"knowing" should be divided into circumstances to judge,respectively to the doer’s own confession,its subjective intention to identify;As for "should know",it should be classified.First,it should be presumed whether it is "should know" after receiving the notice from the regulatory authority or being reported.Second,in the type of technical equipment provided to others,judge whether they know that the behavior of accepting help is a crime,and then infer whether they know it.