帮助信息网络犯罪活动罪的司法限缩适用

Judicial Limited Application of the Crime of Assisting in Information Network-Related Criminal

帮助信息网络犯罪活动罪是《刑法修正案(九)》新增的罪名,体现了立法者对网络犯罪进行全链条打击的决心,其目的是为了明确当正犯达不到定罪标准时,帮助者的责任该如何认定的问题。司法实践中在认定时不需要正犯的行为符合构成要件并且违法,只要现有证据表明他人(正犯)利用信息网络实施了符合构成要件的不法行为,根据限制从属性说的原理,实施帮助行为的人就成立帮助犯。本罪名在刚刚出台时的认定并不多,但是在近几年,帮助信息网络犯罪活动罪的案件数量有所增加,甚至有滑入“口袋罪”的风险,值得深入思考。因此强调本罪是对网络犯罪刑法体系的补充,限缩本罪在司法实践中的适用。

The crime of aiding information network criminal activities,a newly added offense in the Amendment(IX)to the Criminal Law of the People’s Republic of China,embodies the legislator's determination to combat cybercrimes in an all-round manner.Its purpose is to clarify how to determine the responsibility of the aider when the principal offender fails to meet the criteria for conviction.In judicial practice,it is not necessary for the principal offender's conduct to meet the constituent elements and be illegal.As long as there is existing evidence showing that another person(the principal offender)has committed an unconstitutional act that conforms to the constituent elements through the information network,the aider who provides assistance will be established as an accessory offender according to the principle of limited subordination.When this crime was first introduced,there were not many convictions.However,in recent years,the number of cases involving the crime of assisting in information network-related criminal activities has increased,even risking slipping into the category of a"pocket crime,"which deserves deep consideration.Therefore,it is emphasized that this crime serves as a supplement to the criminal law system of cybercrimes,and the application of this crime in judicial practice should be limited.