刍议帮助信息网络犯罪活动罪的法律性质

On the Legal Nature of the Crime of Helping Information Network Crime

关于帮助信息网络犯罪活动罪法律性质的讨论,学界的观点集中于帮助行为的正犯化、帮助行为的量刑规则以及独立构罪,各有论道,各有争议,似乎无法确定更优路径。梳理现有观点,发现在共犯框架下讨论帮助信息网络犯罪活动罪会出现共犯罪量上升、罪刑下降的逻辑矛盾,难以辨别该罪与共犯的关系属于想象竞合还是法条竞合,突破共犯理论以及与正义理念相悖等问题。尝试从立法的倾向、适用的独立性、中立行为规制的避免以及体系顺畅等方面倡导应当将帮助信息网络犯罪活动罪的法律性质解释为独立构罪。

With regard to the discussion on the legal nature of the crime of helping information network criminal activities, the views of the academic community focus on the criminalization of the help behavior, the sentencing rules of the help behavior, and the independent constitution of the crime. Each has its own set of arguments and controversies, and it appears impossible to determine a better route. After sorting out the existing views, the authors found that under the framework of accomplice discussing the crime of helping information network criminal activities will lead to the logical contradiction that the amount of accomplice will increase and the punishment will decrease.It is difficult to distinguish whether the relationship between the crime and accomplice belongs to the concurrence of imagination or the concurrence of laws. After breaking through the problems such as the theory of accomplice and the contradiction with the concept of justice, we try to advocate that the legal nature of the crime of helping information network criminal activities should be interpreted as an independent crime from the aspects of the legislative tendency, the independence of application, the avoidance of neutral behavior regulation and the smooth system.