帮助信息网络犯罪活动罪之性质探析

Analysis on the Nature of the Crime of Helping Information Cybercrime

学界对帮助信息网络犯罪活动罪的性质争议主要涉及帮助行为能否正犯化、中立行为能否予以犯罪化、帮助信息网络犯罪活动罪是帮助犯量刑规则时是否还适用刑法总则中帮助犯的处罚规定这三个问题。由于帮助信息网络犯罪活动罪行为人主观方面故意内容需与正犯实行行为有重合之处、行为人提供帮助的客观行为不法性仍来自正犯、行为人的帮助行为是否侵害法益及侵害法益的程度仍是由被帮助者行为造成之危害结果决定、不能认为设置了独立法定刑就意味着其是拟制正犯,该罪只是帮助犯的量刑规则。

The controversy over the nature of the crime of helping information cybercrime is mainly related to three questions: whether the act can be criminalized, whether the neutral act can be criminalized, and whether the punishment regulated in the general rule of the criminal law can be applied to the crime of helping the information network criminal activity. Since the crime of helping information cybercrime is subjective, the intentional content needs to overlap with the act of committing the crime, and the wrongfulness of the objective act of the actor is still from the offender, whether the act of the actor' s help violates the legal interest and the degree of infringement of the legal interest is still It is determined by the result of the harm caused by the behavior of the helper, and it cannot be considered that the establishment of an independent statutory sentence means that it is a pseudo-criminal, which is only a sentencing rule to help the offender.