刑事一体化视野下“两卡”型帮信罪的治理路径研究

Study on the Governance Path of“Two-Card”Type Crime of Assisting Information Network Criminal Activities:A Perspective of Criminal Integration

从刑事一体化视角考察,帮助信息网络犯罪活动罪的急剧扩张适用主要是因为,在政策落实上因片面适用“从严从重”而易突破成文法;在犯罪认定上因割裂了实质与形式要件而降低入罪门槛;在行刑界分上多以“量”为标准而阻碍了案件分流至行政处罚;在犯罪预防上因相关措施缺乏针对性而难以使民众产生抑制动机即预防效果不佳。由此,刑事一体化下的“两卡”型帮信罪治理路径,既要严格贯彻“宽严相济”刑事政策,又要坚持形式与实质相统一等原则,予以基于罪刑法定原则的既合理又合法的定罪处刑与刑行分流分治,积极采取多维源头治理有效遏制“两卡”型帮信行为的滋生。

From the perspective of criminal integration,the drastic expansion in the application of the crime of assisting information network criminal activities is mainly due to the fact that,in terms of policy implementation,it is easy to break through the statutory law by unilaterally applying the principle of“strictness and severity”;in terms of crime determination,the threshold for incrimination is lowered because of the separation of the substantive and formal elements;and in terms of the division of penalties,the criterion of“amount”is often used as the standard,which hinders the diversion of cases to administrative penalties;and in the prevention of crimes,the lack of targeting of relevant measures makes it difficult for the public to generate disincentives,which is to say that the effect of prevention is not good.Therefore,the governance path of“two-card”type crime of assisting information network criminal activities from the perspective of criminal integration should not only strictly implement the criminal policy of combining leniency with severity,but also adhere to the unity of form and substance.Based on the principle of legality,reasonable and legal conviction and punishment and criminal diversion are carried out.The government is also actively adopting multi-dimensional governance at the source to effectively curb the growth of the“two-card”type assisting information network criminal activities.