帮助信息网络犯罪活动罪的认定困境及解决路径

Determination of Assistance in Information Network Crimes:Difficulties and Solutions

当前,网络犯罪高发,部分网络帮助行为因其独立属性,难以认定为传统的帮助犯。刑法修正案(九)中增设了帮助信息网络犯罪活动罪,对具有独立属性的网络帮助行为以“积量构罪”的方式进行出入罪认定,有效解决了传统共犯理论无法认定的难题。但在司法实践中,围绕资金混同、流水累计、罪名区分等问题争议巨大。对于资金混同,要分析上级信用卡的流水情况,并结合相关司法解释进行处理;对于流水,要全面综合分析涉案信用卡的流水来源和金额来判断是否累计;对于罪名区分,要综合行为人供述、客观证据、一般人的认知水平和行为人的认知能力等进行认定,同时结合行为人主观恶性、社会危害性等综合判断量刑是否均衡。

At present, there is a high incidence of network crimes. Some network assistance behaviors are difficult to be identified as traditional accomplices because of their independent attributes. In Amendment(IX)of Criminal Law, the crime of assisting information network crime is added, which determines the crime of assisting network behavior with independent attribute by means of "cumulative construction crime",effectively solving the problem that the traditional theory of accomplice cannot identify. However, in judicial practice, there are huge disputes surrounding the confusion of funds, the accumulation of flowing water and the distinction of charges. For the confusion of funds, to analyze the superior credit card flow situation, and combined with relevant judicial interpretation to deal with;For the bank account, it is necessary to comprehensively analyze the source of the bank account and the amount of the credit card involved to judge whether it is accumulated. For the distinction of crimes, it is necessary to recognize the confession of the perpetrator, objective evidence, the cognitive level of ordinary people and the cognitive ability of the perpetrator. At the same time, it is necessary to judge whether the sentencing is balanced by combining the subjective malignancy and social harm of the perpetrator.