网络犯罪帮助行为的归责障碍与刑法应对

The Imputation Obstacles and Criminal Law Countermeasures for Helping Behaviors of Cybercrime

网络犯罪帮助行为由于网络技术的发展而发生异变。面对传统共犯理论在应对中的乏力表现,刑事司法、立法及理论界都做出了积极探索,但依然存在诸多问题。为有效解决网络犯罪帮助行为的归责障碍,有必要立足于本土理论,修正传统共犯归责模式;选择缓和修正后的限制从属性说,引入片面共犯理论以消除因犯意联络缺失而导致的入罪障碍,扭转将帮助犯等同于从犯评价的思维惯性,并以正当业务为抗辩事由构建合理的出罪机制。

The helping behavior of cybercrime has changed with the development of network technology. Faced with the weak performance of the traditional theory of accomplice, criminal justice, legislation and theoretical circles have made active exploration, but there are still many problems. In order to effectively solve the problem of attribution, it is necessary to revise the traditional attribution model of accomplice based on the local theory. In order to eliminate the hindrance of incrimination caused by the lack of criminal intention connection, we choose the moderated and modified theory of restricted accessory attribute, and introduce the one-sided accomplice theory to reverse the thinking inertia that the accomplice is equal to the evaluation of accomplice, and construct a reasonable incrimination mechanism based on the defense of legitimate business.