网络共同犯罪的多元挑战与有组织应对

Multiple Challenges and Comprehensive Reactive Approaches for Network Joint Crimes under New Situation

网络环境使得共同犯罪意思联络具有突出的片面性、模糊性、间接性、偶发性,共同犯罪行为具有明显的单方性、中立性、预备性、危险性等特征,导致传统共同犯罪理论与立法规定深陷适法"过敏"症状。"共犯正犯化"的扩张解释应声而出,而其争议可以通过理论变革或立法解决。网络片面共犯及按照片面帮助犯处理网络技术帮助行为、独立处罚网络预备行为等路径应持续发力。

Currently,technical reliance and massive virtualization of network environment have become significantly apparent. As a result,the meaning of joint crimes is becoming more and more comprehensive with the characteristics of sidedness,ambiguity,secrecy and randomness,while the understanding of joint acts is becoming more and more sophisticated with the characteristics of unilateralism,dangerousness,neutrality and being preparative,which has led to deep'allergy'symptoms of the traditional theories and the present legislation of joint crimes as well as judicial application predicaments in some new hard cases. Under this condition,an expansive interpretation path of'making some joint offenders into principal offenders'has appeared,but the controversy can be resolved by theory transformation and legislation. Recently,the expansive interpretation path has been already transferred into criminal amendment. Meanwhile,paths like the reasonable expansion application of one-sided network accomplice crime and the necessary punishment of network preparatory behaviors as well as the scientific punishment of the behaviors of providing neutral technical assistance should continuously and effectively cope with the coming-up challenges of network joint crimes.