帮助信息网络犯罪活动罪量刑特征及影响因素实证研究——以某省225份判决书为样本

An Empirical Study on Sentencing Characteristics and the Influencing Factors in Aiding Information Cybercrime-A Sample of 225 Judgments in a Province

对某省帮助信息网络犯罪活动罪225份判决书进行实证研究发现:主、从犯未得到区分可能致量刑有失公允;“介绍人”一律认定为主犯与罪刑相适应原则相悖;单处罚金得不到适用或加重刑罚。根据重要作用说,即使尚未实施构成要件规定之行为但对不法的形成有重要作用的是共同正犯,按照主犯处罚;“介绍”已有犯罪故意的成员加入的是教唆犯,仅有牵线搭桥之行为的是从犯;侦查、公诉、审判三机关分工合作,保障单处罚金刑得到有效适用。

An empirical study of 225 judgments on aiding information cybercrime in a province found that the lack of distinction between principal offender and accomplice may lead to unfairness in sentencing.Firstly,the"introducer"is always considered as the principal offender,which is contrary to the principle of adaptation of crime and punishment,and the single fine is not applied or the penalty is increased.On one hand,according to the important role theory even though he who has not yet committed the acts stipulated in the constitutive elements but has an important role in the formation of the lawlessness is a joint principal offender and is punished.On the other hand,he who"introduces"a member with criminal intent to commit a crime is the abettor and the accomplice only to matchmake in a crime.So the three organs of investigation,prosecution and trial divide their work and cooperate to ensure effective application of the single fine penalty.