[Law Exchange] Following the "independence" is the key to correctly applying the crime of

罪 The crime of helping information network criminal activities is a typical legislative law that helps act righteousness. The help of help is not limited to helping behaviors in common crimes, but also includes other help behaviors.

The neutral help behavior includes not only the neutrality of the objective performance of the behavior, but also the neutrality of the subjective content of the perpetrator. At the same time, the neutral help behavior should promote the implementation of related criminal behaviors. Therefore, when the purpose of the perpetrator is not legitimacy, the appearance of neutral business behavior does not belong to the category of neutral help behavior.

Professor Liu Xianquan at the School of Criminal Law, East China University of Political Science and Law

Since the establishment of the Criminal Law Amendment (9) in 2015, it has been settled in the crime of helping information network crimes, and the original meaning and judicial application of the crime have been arguing. For example, whether the crime is a legislative law that helps the behavior of the active crime, and whether all network neutral help behaviors must be incorporated into the scope of criminal law regulation. In fact, these issues have become the focus of the theoretical disputes and difficulties of criminal law. Here, we will discuss the above issues in order to benefit the identification of the crime of helping information network crime activities in judicial practice.

Establishing a crime of helping information network criminal activities is a typical legislation that helps act righteousness

With the in -depth development of network technology, the division of labor of cyber crime activities has become increasingly detailed. In order to conduct a comprehensive crackdown on criminals to use the Internet to engage in criminal activities, the criminal law specifically regulates the help behavior of helping some network crimes by setting up a crime of helping information network crimes. Theoretically, the help behavior that will not be in accordance with the basic constituent elements in the criminal law directly specifies the independent positive criminal behavior, and conviction and punishment shall be convicted according to the criminal composition and formation of basic criminal composition and formation. Of course, the academic community is still controversial for whether the crime of helping the information network crime is to help the act of righteousness. Some opinions believe that the crime of helping information network criminal activities is not a legislation that helps to righteousness, but only a rule of sentencing for criminals. The author refers to this view to help the rules of criminal sentencing. According to this view, the essence of helping the crime of information network criminal activities is still helping the offender, but because the provisions of the dividend provides independent legal punishment, so the general regulations of the general criminal law on helping the criminals. However, the author believes that the crime of helping information network criminal activities is a typical legislation that helps act righteousness, and the rules of criminal sentencing are not reasonable.

First of all, the crimes in the provisions of the Criminal Law of my country are specified by the templates with separate positive crimes. This is the basis of the argument, otherwise it cannot be discussed at the same level. According to the theory of traditional criminal law, once the criminal law is divided into a new sin, the relevant help behavior is provided as criminal acts.

Secondly, helping behavior righteousness is a actual choice for criminal legislation. The establishment of the crime of helping information network crimes is more reflecting the criminal policy orientation of legislation to respond to various social risks in the cyber era. The core conclusion that helps to quantify the rules of sentencing is that the behavior of helping the information network criminal activity should be punished in accordance with the legal punishment of the crime of helping the information network crime. There is no contradiction between the categories. Therefore, we cannot explain the rules of criminal giving mergers in the interpretation theory.

Again, the help of help in the crime of helping information network crimes includes both helping behaviors that can be regarded as "helping criminals" in common crimes, but also other help behaviors. According to the traditional theory of common crime, the establishment of common crimes requires the intention of the actor's intention to have a common crime and the criminal behavior constitutes a crime. The help behavior regulated by the crime of helping information network crimes does not use the intention of the common crime and the help of the crime to constitute the crime as a crime condition. The interpretation of criminal cases such as illegal use of information networks and helping information network criminal activities such as applicable laws such as applicable laws such as applicable to laws "(hereinafter referred to as" Explanation ") also made clear stipulations. It can be seen that the crime of helping the information network crime activity has incorporated part of the unable to be identified by the traditional common crime theory as helping the criminals to help the criminal law regulatory scope. At the same time, even according to the theory of covalent restrictions, the help behavior in the crime of helping information network crime activities is not all of the help of the criminals in common crimes. For example, in the case of helping cyber crimes, when the helping person implements the criteria for criminal acts that fails to meet the criteria of crime, according to the principle of co -ownership, helping the behavior cannot constitute helping the criminals in the common crime. However, as long as this type of network helps reach the degree of "serious circumstances", it can still constitute a crime of helping information network criminal activities. It can be seen that the help of the crime of helping the information network crime is not limited to the help behavior in common crimes, including other help behaviors.

Finally, after the relevant network helps the behavior of being criminal, the acute behavior of helping the information network criminal activities can constitute a criminal of the offenders. This is the influence of the qualitative impact of the behavior of the behavior of helping the behavior. In comparison, before the establishment of the crime of helping the information network crime, related institutional actions can only be identified as an instrumental criminal. In this regard, the impact of helping the active crime of behavior is not limited to the establishment of sentencing rules for helping information network criminal activities, and also includes the impact on the identification of the institutional criminals.

All network neutral assistance behaviors should not be attributed to the crime of helping information network crime activities. According to Article 287 of the Criminal Law, the crime of helping the information network criminal activity indicates that knowing that others use information networks to implement crimes, and provide Internet access and servers for their crimes. Technical support such as custody, network storage, communication transmission, or providing advertising promotion, payment settlement and other help, serious circumstances. According to this, it is believed that on the premise of helping people to use the information network to use the information network to implement crimes, even if help people implement the "neutral" business behavior, it may constitute a crime. Restrictions. The author cannot agree with this view. The so -called neutral help behavior includes not only the neutrality of the objective performance of the behavior, but also the neutrality of the subjective content of the perpetrator. At the same time, the neutral help behavior should promote the implementation of related criminal behaviors. Therefore, when the purpose of the perpetrator is not legitimacy, the appearance of neutral business behavior does not belong to the category of neutral help behavior. In this regard, most of the actions regulated in the crime of helping information network crime are not neutral helping behaviors. Of course, if the actor is subjectively unknown to the help person will implement cybercrime, even if the relevant business behavior objectively promotes the crime of the help person, the neutral helping behavior of the perpetrator can not constitute a help information network crime crime. Crime.

Generally speaking, the "knowing" in the criminal law points contains the two situations that really know and should know. As far as the "knowing" in the crime constituent elements of helping information network crime activities, if the helping person really knows that the help person will implement network criminal behavior, it will certainly help people know that others use information networks to implement crimes. However, it is difficult to determine how to help people "know that being helped to use information networks to implement crimes." In this regard, Article 11 of the Explanation can be listed in practice that it may be identified as "should be known". This means that the judicial interpretation believes that when facing these situations, business personnel who are engaged in neutrality often know or have a probability that the help person may implement cyber crimes. The subjective mentality of knowing knows. It should be noted that in the face of massive businesses, the business personnel of each network service provider or communication service provider will realize that the related businesses they do may be used to implement cyber crimes. If the normal subjective inference of this business personnel or the mentality of contextual conception is attributed to the category of "knowing", it may expand the scope of the sin of helping information network crime activities. Based on this, for business personnel engaged in neutrality, judicial organs should strictly grasp the criteria for "knowing" in the crime of helping information network crimes.

Help the crime of information network crime activities and other crimes and the handling of crimes

After the establishment of a crime of helping information network crime activities, the help of helping to constitute a common crime of the network directly became the positive crime of the crime, which caused two problems: one is whether the actor constitutes the crime of helping the information network crime activity. It also constitutes a common crime of other crimes; the second is that the perpetrator implements other criminal acts after the act of helping to help information network criminal activities.

Regarding the first question, the establishment of the crime of helping information network crimes does not affect the actor constituted other crimes. In this regard, Article 2 of Article 287 of the Criminal Law clearly stipulates that if there is the first two acts and at the same time, if other crimes are constituted, conviction and punishment shall be determined in accordance with the more severe punishment. This means that the help of related network crimes, while constituting the crime of helping information network crime activities, may also constitute other criminal help or righteous criminals. At this time, it should be determined according to the weight of different crimes. First, the crime of the actor's establishment of helping information network crime does not affect the help of the same criminal help. For example, the act of acting providing technical support for downstream cyber fraud crimes not only constitutes a crime of helping information network crime activities, but also at the same time to help the criminal of fraud. At this time, the response actor was identified as the crime of fraud to help the offending from the crime of helping the crime of helping the information network crime activity. Penalty. Second, the perpetrators may constitute other criminal crimes while setting up crime of helping information network crimes. For example, if a perpetrator knows that others will implement false advertising crimes on the Internet, and provide the help of false advertising promotion, their behavior may also constitute a crime of crimes of false advertising in Article 222 of the Criminal Law. When the advertising promotion behavior also meets the "serious circumstances" standard and the crime standard for the crime of helping information network crimes, at this time, the behavior is also in line with the situation stipulated in Article 287 of the Criminal Law. Heavier conviction and punishment.

Regarding the second question, two different situations should be distinguished: First, if the perpetrator implements the illegal behavior of helping the information network crime activity, and other criminal acts other than the network crime they help, according to the The number of crimes offending the crime of the actor was punished and punished. For example, after providing technical support, advertising promotion, payment settlement and other help for other people's implementation of cyber fraud crimes, after the help of other people's online fraud, the information network uses information networks to help others cover up and conceal criminal income. At this time, the perpetrator implemented two criminal acts, which constitute the crime of helping information network crime activities and concealing crimes, concealment of criminal income, and income of criminal income. Although the actor's use of an information network to help others cover up and conceal the criminal income also belongs to the use of the information network to implement criminal behavior, the implementation of the criminal behavior has no causal relationship with the help of the actor's help. In this case, the crime of helping information network criminal activities should be used to help information network criminal activities, concealing crime income, crime income, and crime of income, and punishment and punishment. Second, if the perpetrator implemented the "help information network crime activity" and then implemented downstream network criminal behavior, it was only necessary to convict and punish the crime of downstream crimes committed by the actor. Because Article 287 of the Criminal Law clearly stipulates that only when knowing that others use the information network to implement crimes, the behavior of the actor's provision of relevant help can constitute the crime of helping the information network crime. It can be seen that "knowing that others use information networks to implement crimes" do not include knowing that they use the information network to implement crimes. At this time, the actor's pre -prepared technical support, advertising promotion, payment settlement, etc. that do not meet the crime of helping information network crime activities in advance for subsequent cyber crimes, at best the active "help behavior" of the perpetrator can only be regarded as it. The preparation process of downstream crimes can be convicted and punished by the actor in accordance with the relevant crimes of downstream cyber crimes. (The author Liu Xianquan and Wang Zhe, a professor at the School of Criminal Law of East China University of Political Science and Law)

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