帮助信息网络犯罪活动罪与掩饰、隐瞒犯罪所得罪的区分标准

On Criteria for Distinguishing between The Crime of Helping Information Network Criminal Activities and the Crime of Disguising or Concealing the Proceeds of Crimes

帮信罪与掩隐罪危害行为竞合、侵害法益交叠、历史沿革相继,具有高度相似性。帮信罪案件数量急剧上升引发“口袋罪”担忧,学界主张以掩隐罪分流处置,亦契合掩隐罪作为洗钱犯罪适度扩张趋势。帮信罪与掩隐罪区分理论包括时间节点、客观行为、主观认识、犯罪对象、查证程度区别说。经过实践检验,时间节点区别说因无法达成两罪区分目的被排除,客观行为区别说衍生出三个判断要素与犯罪对象区别说、主观认识区别说、查证程度区别说相呼应,最终形成以客观行为为统摄,主要侵害法益、主客观相一致、罪责刑相适应三位一体区分原则,三者形成层层递进规则为帮信罪与掩隐罪区分供给标准。

The crime of helping information network criminal activities and the crime of disguising or concealing the proceeds of crime are highly similar,i.e.the infringement of legal interests overlap,and the history follows one another.The sharp rise in the number of cases of the crime of helping information network criminal activities leads to the concern of"pocket crime".The academic community advocates the diversion of the crime of disguising or concealing the proceeds of crimes,which is also in line with the moderate expansion trend of hidden crimes as money laundering crimes.The theory of distinguishing between the two crimes includes time node,objective behavior,subjective cognition,crime object and the difference of the degree of verification.After practical test,the time node distinction theory was excluded because it could not achieve the purpose of distinguishing two crimes,and the objective behavior distinction theory derived three judgment elements that echoed the crime object distinction theory,the subjective cognition distinction theory,and the verification degree distinction theory,and finally formed the trinity distinction principle of taking objective behavior as the control,mainly infringing legal interests,consistent subjective and objective,and adapting crime,responsibility and punishment to the crime.The three forms progressive rules.