支付结算型帮助行为的刑法规制

Criminalization of Payment Settlement-Type Helping Behavior

摘要: 为信息网络犯罪提供支付结算服务的犯罪呈现出专业化、产业化、一对多的新特性，该类案件的审理呈现出行为定性难、罪名适用混乱、犯罪金额认定难等问题。解决这些问题的核心在于把握支付结算型帮助行为的内涵，并在此基础上厘清帮助信息网络犯罪活动罪和掩饰、隐瞒犯罪所得罪。帮助信息网络犯罪活动罪的本质是独立构罪，不应当根据上游犯罪既未遂区分说区分二者，应当从主观认识、转移资金的性质、参与时间三个方面区分二者。在为信息网络犯罪提供支付结算服务当中，犯罪数额应当只考虑单向流入的与犯罪有关的资金，但是在特殊情况下可以考虑以流水金额作为犯罪数额。

Abstract: The crime of providing payment and settlement services for information network crimes presents new characteristics of specialization, industrialization and one-to-many, and the trial of such cases presents problems such as difficulty in characterizing acts, confusion in the application of crimes and difficulty in determining the amount of crimes. The core of solving these problems lies in grasping the connotation of payment and settlement-type helping behavior and clarifying the crimes of helping information network criminal activities and disguising and concealing the proceeds of crime on this basis. The essence of the crime of helping information network criminal activities is an independent crime, and the two should not be differentiated according to the distinction between the predicate crime and the crime of attempt, but should be differentiated in terms of subjective awareness, the nature of the transferred funds, and the time of participation. In the provision of payment and settlement services for information network crimes, the amount of the crime should only take into account the unidirectional inflow of funds related to the crime, but under special circumstances, the amount of the flow of funds may be considered as the amount of the crime.