网络参与行为刑事归责的“风险犯”模式及其反思

Comments and Rethinking about the “Risk Offence” Mode of Identifying Criminal Responsibility for Internet-Participating Conducts

《刑法修正案(九)》增设了我国《刑法》第287条之二,规定了帮助信息网络犯罪活动罪,将网络参与行为纳入了我国刑法的规制范围。对此类行为进行刑事归责面临的核心矛盾是互联网环境下法益侵害社会化与刑事责任个别化的冲突。作为刑事责任个别化的基准,行为不法应当具备刑法规范上的明确性与确定性。"网络帮助行为正犯化"以及共犯归责的模式,是以无法类型化的法益侵害风险作为认定行为不法的依据,继而将责任内涵空心化,完全依赖司法解释对"情节严重"的政策性规定以限定该罪处罚范围,实质创设了"风险犯"的归责模式。应当从以风险为中心回归以法益为中心,明确该罪保护的新型法益是法定主体的信息专有权。该罪所规制的,是侵犯法定主体信息专有权的预备行为,应适用抽象危险犯的正犯归责模式予以归责。

The crime of assisting information network crime has been set forth in Paragraph 2 of Article 287 of Criminal Law through the Ninth Amendment, thus the internet-participating conduct has been gov- erned by the criminal law. The core contradiction in identifying the criminal responsibility of these conducts is the conflict between the enlarged damage to the legal interest and individualization of criminal responsibil- ity in the environment of internet. As criminal conducts should be clear and ting conduct in internet as a behavior joint crime regards the risk of damage the criterion of individualizing criminal responsibility, the illegality of certain as set forth in criminal law. The mode of ＂legislating an assis- of the principal＂ and identifying criminal responsibility on basis of the to legal interest which cannot be categorized as the foundation of de- termining the illegality of a conduct, then eroding the function and meaning of criminal responsibility and limiting the punishing scope of this crime totally by policy-styled regulations on ＂serious circumstances＂ in judicial interpretation, factually creating the ＂risk offence＂ mode in identifying criminal responsibility. The focus shall be shifted from on the risk to on the legal interest and it shall be made clear that the new type of interest of this crime is the legal subject＇ s exclusive right to information. This crime refers to preparatory conducts of offending the legal subject＇ s exclusive right to information, so in identifying the criminal respon- sibility for offenders, the model of identifying criminal responsibility of a principal in an offense of abstract danger shall be applied.