Accurately evaluate the crime of helping information network crime

2022-06-07 0 By

In recent years, cyber crimes are on the rise, and all kinds of traditional crimes are increasingly transferred to the Internet. Cyber crimes are in a situation of high incidence and frequent occurrence, which seriously endangers national security, social order and the legitimate rights and interests of the people.In order to further punish network crimes and maintain normal network order, the amendment (IX) to the Criminal Law of 2015 added the crime of “helping information network crimes”, making the helping behavior of information network crimes independently punishable.In November 2019, the Two Supreme People’s Governments issued the Interpretation on Several Issues concerning the Application of Law to Criminal Cases involving Illegal Use of Information Networks and Assistance in Information Network Crimes (hereinafter referred to as the Interpretation) to further ensure the correct and uniform application of laws.The legislation of Our country directly evaluates the act of helping the information network crime as an act of violating legal interests, which is a response to the breeding and spreading of the black and gray industrial chain of the network crime.In judicial practice, it is difficult to distinguish the boundary between the crime of helping information network crime and the accomplice of some upstream crimes, which leads to differences in the application of judicial practice.The author analyzes the crime of helping information network crime and the crime of fraud as an example.First, the content of help is different.The act of helping information network crime belongs to the act of helping telecom network fraud, but the latter is not necessarily applicable to the former crime at the same time, the two are the relationship between inclusion and inclusion.Is clear provisions are applicable to provide Internet access, the server hosting, payment clearing and other specific help behavior, for the general help behavior, such as providing places, financial support, and the other did not reach the seriousness of the technical support and the degree of decisive behavior, is more appropriate as the accomplice of telecom network fraud crime.Second, the role of help is different.When the above help behavior itself illegal sex is still uncertain, especially there is helping behavior, “more than a bunch of” need for telecom network fraud crime is to identify the behavior to force, namely, the severity of the plot, only help behavior embodied in the form for the auxiliary essentially as an independent crime, only can consider to apply help information network crime;The accomplice of telecom network fraud crime only needs to consider the division of labor at the general level.Therefore, the perpetrator provides phone cards and bank cards to multiple people, and only when the use behavior reaches a decisive degree and can substantially promote the occurrence of information network crimes, can it constitute the crime of aiding information network crimes.Third, the legal interests of infringement are different.The crime of fraud is a crime of encroachment on property, which infringes on the ownership of public and private property, while the crime of helping information network crime belongs to the crime of disturbing public order, especially in the case of “many groups”, the infringement of legal interests is diversified, not only the management order of network space.That is to say, the nature of the infringement should be considered. When the act of providing a phone card or bank card causes a specific infringement of legal interests, it may constitute two crimes at the same time.When the infringement of legal interests is abstract and general, it is not suitable to be identified as an accomplice of fraud.And the two sentencing rules differ greatly.Penalty discretion to a great extent, reflected the social risk assessment of some kind of crime, from the point of maximum sentence, phone CARDS, card type assistance behavior because of different charges may be considered, so the person face be sentenced to fixed-term imprisonment of not more than three years or highest the vast difference between the highest life imprisonment, so to help behavior qualitative must highlight the substantial assessment of quilt is infringed.Fourth, the presumption of knowing is different.According to “explain” seven subjective knowledge can be presumed as stipulated in article 11, “knowing” includes both direct intent subjectively knows for the person, also including the laissez-faire attitude of indirect intent, the conductors such as fixed rental business personnel of management, in many times summoned by the public security organs and investigation after sale record card, still continue to sell and declared, “I just sell number,”In this case, the subjective laissez-faire mentality of the perpetrator can be identified, which is applicable to the crime of helping information network crime.When the perpetrator and the aided person have the same criminal intention connection and constitute two crimes, the third paragraph of article 287 bis of the criminal law shall be applied to imagine the crime as a felony.The distinction between the crime of helping information network crime and the crime of covering up, concealing the proceeds of crime and the crime of concealing the proceeds of crime have certain relation and similarity.The overlap of the two charges mainly lies in the issue of how to determine the nature of providing bank cards to criminal suspects engaged in network crimes.The two main differences are as follows: One is different behavior object.The acts carried out by the doer in the crime of concealing the proceeds of crime and proceeds of crime can only be targeted at the proceeds obtained by the upstream crime.In the crime of helping information network crime, the object of the doer providing payment services is usually the criminal act carried out by upstream crimes, such as providing bank cards for telecom network fraud, which is used by the helper to collect money from the victim and is the necessary “tool” for the crime.Second, the nature of behavior is different.The perpetrator of the crime of helping information network crime actually belongs to the perpetrator of the upstream crime. Without the perpetrator to provide payment and settlement help, the upstream crime lacks the channel to collect the proceeds of crime, and the upstream crime will be difficult to complete.The act of concealing the proceeds of crime is not necessary for the upstream crime, and even if it is separated from the act, it does not affect the completion of the upstream crime.Third, the specific content of the upstream crime is different.The crime of helping information network crime requires that the upstream crime should be limited to general knowledge, that is, it does not ask what kind of network crime the upstream criminal commits.If he knowingly helps the perpetrator of an upstream crime to make payment or settle settlement, he shall be evaluated as an accomplice of the upstream crime.However, the crime of concealing the proceeds of crime and the proceeds of crime has no such restriction. The perpetrator’s knowledge of the property involved can be either general knowledge or explicit knowledge. As long as there is no collusion in advance, the perpetrator cannot be evaluated as an accomplice of the upstream crime.Fourth, different means of behavior.Help information network crime crime is common in practice of behavior is to provide payment and settlement tool, including but not limited to, such as credit CARDS, phone CARDS, online payment tool but hide hide crime proceeds, proceeds from crime behavior mainly means in favor of sheltering, transfer, sell, knowingly to the crime income property to help upstream crime.Wu Tao and Sun Fang are executive Deputy Chief Procurators of The People’s Procuratorate of Yongji City, Shanxi Province, and assistant Procurators of the Seventh Procuratorial Department of the People’s Procuratorate of Shijingshan District, Beijing