Point of View | "Knowing" in the Crime of Helping"
Published:
2024-01-17
At present, the crime of helping information network criminal activities (hereinafter referred to as "the crime of helping information") has become the third most prosecuted crime among all kinds of criminal crimes. There are many aspects of the crime of helping the letter, the author only from the "knowingly" point of view of the crime of helping the letter to explain his point of view.
At present, the crime of helping information network criminal activities (hereinafter referred to as "the crime of helping information") has become the third most prosecuted crime among all kinds of criminal crimes. In colleges and universities, many students rent their bank cards to others and charge a monthly fee. These students have been investigated or prosecuted in many cases on suspicion of helping letters. There are many aspects of the crime of helping the letter, the author only from the "knowingly" point of view of the crime of helping the letter to explain his point of view.
Article 287 bis of the Criminal Law stipulates: "Knowing that others use information networks to commit crimes, provide technical support such as Internet access, server hosting, network storage, communication transmission, etc., or provide advertising promotion, payment and settlement If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also or separately be fined." It can be seen that "knowing" is the subjective element of the crime of helping the letter and is a prerequisite for constituting this crime. It is of great significance to clarify the content and extent of "knowing", to analyze the case, to provide agency opinions, and to determine the crime and innocence of the lawyer.
The content of the crime of helping the letter can be explained from three aspects: first, the object of the crime of helping the letter is the criminal act. Article 287 bis of the Criminal Law stipulates the object of knowing, that is, "knowing that others use the information network to commit crimes". Therefore, the perpetrator must realize that his behavior is to provide assistance to others in the crime, otherwise it will not meet the requirement of knowing the crime of helping the letter. Second, the knowledge of the crime of helping the letter is not specific. There are many kinds of information network crimes, such as gambling, fraud, infringement of citizens' personal rights and so on. The criminal law only generally expresses the crime of helping others in the crime as "using the information network to commit a crime". Therefore, it is not necessary for the perpetrator to realize the nature and category of the crime committed by others, as long as he realizes that others are using the information network to commit crimes. Third, knowing that it can exist before, during and after the crime of others. Information network crime is a continuous process, such as the preparation and implementation of network fraud, the transfer of stolen money, etc. Even if the perpetrator only knows afterwards that others use his bank card to transfer stolen money but does not stop it in time and continues to collect the card fee, it can also constitute the knowledge of the crime of others and provide help. As for the final determination of the perpetrator as the crime of helping letters or concealing the crime and the number of crimes that may be involved, it should be based on the specific criminal act of the perpetrator.
The knowledge of the sin of helping faith should reach the level of "knowing" and "should know. The "know" of the crime of helping the letter means that the perpetrator clearly knows that the object being helped is a cyber crime; "should know" means standing in the position of the perpetrator and from the perspective of a general rational person, it is impossible not to know that the behavior of the object being helped is a crime. In the process of interrogation, many criminal suspects often say that they do not know that others use their bank cards to engage in criminal activities. If others are relatives, friends, lovers or other trust relationships of the perpetrator and there is evidence to prove that the other party has legitimate needs from the perspective of the perpetrator, the perpetrator's statement does not know that it can be adopted, but it is difficult for the perpetrator to make profits by lending bank cards. Another case of "knowing" is "may know". "May know" means that the perpetrator may know or may not know. This cannot be regarded as "knowing", otherwise it does not conform to the theory of intentional crime, and the procedure It does not conform to the legal principle that doubts are beneficial to the defendant.
In the process of handling many cases, many investigators ignore the proof of subjective elements and adopt the way of criminal presumption and objective imputation to investigate and interrogate criminal suspects, which violates the principle of benefiting the defendant in procedure and violates the principle of unity of subjectivity and objectivity in conviction. The author believes that the identification of the crime of helping the letter should grasp the identification of knowledge, adhere to the principle of subjective and objective unity, and adhere to the basic positioning of the criminal law as the last sanction, which helps to achieve better social governance effects.
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