网络中立帮助行为的法律定性与入罪限缩

Legal Characterization and Criminalization of Net Neutrality Assistance

理论界对于网络中立帮助行为的法律定性一直存在争议,主要有中立帮助行为正犯化说、量刑规则说、积量构罪说等理论,各有合理性与局限性。有必要明晰网络中立帮助行为的法律性质,既要借鉴共犯限制从属性理论,将网络中立帮助行为置于传统共犯框架范围内初步筛选,又需综合考量帮助者的主观犯意与受助者所实施行为的法益侵害程度,肯定其介于独立性与从属性之间的法律地位。同时,以类型化方式实现对帮信罪的限缩适用,在司法适用上以法益论为内核摒除积极入罪思维,在此基础上区分可罚的中立帮助行为与不可罚的中立帮助行为,为网络中立帮助行为设定多元出罪路径,既要发挥帮信罪兜底性罪名的立法期许,又应对本罪名进行限缩解释,以防其沦落为网络空间口袋罪。

There has always been controversy in the theoretical realm about the legal characterization of net neutrality helping behavior.There are mainly theories such as the neutralization of neutral helping behavior,the theory of sentencing rules,the theory of accumulation of crime,etc.,each of which has rationality and limitations.It is necessary to clarify the legal nature of net neutrality helping behavior.The net neutrality crime assistance is initially screened within the framework of traditional accomplices.It is also necessary to consider the subjective intention of the helper and the degree of legal interest infringement of the behavior carried out by the recipient,and affirm its legal status between independence and subordination.At the same time,the limited application of the crime of helping the letter is realized in a typed way,and the positive criminalization thinking is excluded from the theory of legal interest in judicial application.On this basis,the punishable neutral helping behavior is distinguished from the unpunished neutral helping behavior,and multiple criminal paths are set for the net neutrality helping behavior.It is necessary to give play to the legislative expectation of the crime of helping the cyber crime,and the limiting explanation of this crime should be carried out in order to prevent it from becoming a cybercrime.