On The Judicial Application Of The Crime Of Assisting Information Network Crime

With the rapid development of information network technology,the number of criminal cases using information network technology as a tool is increasing rapidly,which not only causes great harm to the social public order and network security order,but also greatly infringes on the personal and property safety of citizens.At the same time,the behavior pattern and characteristics of related criminal activities have changed greatly compared with traditional crimes,which brings great difficulties to the identification of such crimes.In August 2015,the NPC Standing Committee adopted the Amendment to the Criminal Law of the People’s Republic of China(9),which added the crime of assisting information network criminal activities to the criminal Law.Since then,the act of providing information network technical support and helping to promote others to commit crimes has become a separate crime,so the number of cases suspected of this crime has increased rapidly.But up to now,in the criminal law circle and judicial practice there is still a great dispute about the qualitative problem and the scope of application of this crime.For example,does this crime belong to a "sentencing rule" in the legislative nature,or does it belong to a "legislative model that helps criminalize behavior" ? How to identify the "knowing","criminal" and "serious circumstances" mentioned in the specific provisions of Criminal law? The failure to specify the understanding of the crime and construct a unified and feasible applicable standard not only destroys the unity of legal order,but also seriously affects the outcome of the case judgment.In this paper,the author will start from the overview of this crime,briefly analyze the social harm of the behavior of providing information network technology support and help for others to commit a crime is far more than the practice of the crime committed by the helper,the traditional theory of joint crime can not solve the problem of the identification of information network crime,clear the legislative background of this crime;Then the subjective and objective elements of the crime are analyzed,and the subject of the crime,the subjective "knowing" requirement of the subject of the crime,the object of the crime violated by the crime and the behavior of the crime are discussed.And under the guidance of the theory of "helping acts to be criminalized",the legislative nature of this crime is discussed.Secondly,the author will combine the differences in understanding and identification of the constituent elements such as the doer’s subjective"knowing",others’ "crime" and "serious circumstances" in judicial practice,and enumerate the common behavior types of this crime in detail.From the subjective "clear know","should know","do not know","cheated",between the doer and the helper "meaningful contact",the doer in the subjective implementation of the helper behavior "there is a wrong understanding of the six aspects,point out the understanding of each constituent elements of this crime.Thirdly,the author will summarize the problems existing in the application of this crime in judicial practice,including: Low standards for identifying the doer’s subjective"knowing",insufficient demonstration of the crime committed by the helper,fuzzy boundaries for identifying the "helping behavior",and inconsistent standards for identifying the "serious circumstances".Based on the two factors of unclear legal provisions and the influence of the situation and policy,this paper analyzes and concludes the causes of the problems.Finally,on the basis of a detailed analysis of the problem,the author will put forward suggestions to improve the application of this crime in judicial practice from four aspects: the standard of the doer’s subjective "knowing",the influence of the crime committed by the helper,the standard of "helping behavior" and the standard of "serious circumstances".