Study On Judicial Application Of The Crime Of Helping Information Network Criminal Activities

In the theoretical circles,there are mainly three theoretical disputes on the nature of the crime of helping information network criminal activities,namely,the theory of normalizing aiding behavior,the theory of sentencing rules,and the theory of normalizing a neutral helping behavior.This paper firstly defines that this crime belongs to the normalization of helping behavior,and takes this as the logical starting point of the argument,from the macroscopic,mesoscopic and microscopic perspectives to conduct data statistics,comparative induction and analysis of the sample judgment documents of this crime.Thus,it is found that the crime highlights three problems in practice,that is,the judgment standard of “knowingly”is too low,the definition standard of “serious”is confused,and the concurring treatment of this crime and downstream crime is different,and the distinction between the crime and other network crime is unclear.This paper holds that the causes of the above three problems mainly lie in the different understanding of the connotation and content of “Knowingly”;The nature of “serious circumstances” is controversial in theory and misunderstood in practice.Inaccurate understanding of paragraph 3 of this act and failure to make clear the distinction between this offence and other offences.Based on the above analysis of the causes,this paper believes that the connotation of subjective “knowing”should be understood as “clear knowledge + judicial presumption of knowledge”,and its content is criminal behavior and serious illegal behavior consistent with the type of behavior described in the Criminal Law.On this basis,we can learn from the “red flag principle” to supplement and improve its identification standards.“Serious circumstances” should be understood as the objective elements of restricting punishment,and on the basis of clarifying misunderstandings,the criteria for determination should be refined and supplemented from the two aspects of “single standard”and “comprehensive standard”.As for the concurring problem with associated crime,we should correctly understand the establishment significance of this crime law and the principle of “from the same felony to be punished”and “from the old to be lighter”,and determine it according to the degree of the liaison between the two parties and the effect of the act of helping.For the problem of distinguishing cyber crimes from other cyber crimes by competition and cooperation,discrimination should be made on the basis of correctly grasping the distinction between crime and other crimes.If it is really difficult to distinguish,it can be identified by referring to the legislative spirit of“punishment from one felony” and “special is superior to general”.In addition,this paper recommends that legislative bodies and judicial bodies update judicial interpretations and promulgate guiding cases in a timely manner to clarify judicial determination rules.