论帮助信息网络犯罪活动罪中的“明知”的认定

On the Identification of “Knowing” in the Crime of Aiding Information Network Criminal Activities

摘要: 近年来，帮信罪案件数量迅速攀升，此趋势与司法实践中主观“明知”的认定标准模糊密不可分。结合司法裁判文书及相关理论分析，“明知”应构建内容与程度的双层认定体系。在内容认定维度，需遵循四重限制规则：其一，认识到该行为符合犯罪构成的客观要件即可，无需对具体犯罪细节形成完整认知；其二，此“明知”仅要求行为人单方面意识到他人的犯罪意图或行为，不要求达成共同犯罪的意思联络；其三，“明知”的范畴严格限定于事前或事中阶段，明确排除事后追认的溯及效力；其四，“明知”采取实质判断标准，重点考察行为人对违法性风险的主动识别能力。在程度认定层面，强调“明知”应被界定为“实知”状态，即行为人实际知晓且证据确凿，排除“应当知道”与“可能知道”等模糊标准，避免扩大打击边界及客观归罪风险。

Abstract: In recent years, the number of cases involving the crime of aiding information network criminal activities has risen rapidly. This trend is closely related to the ambiguity of the standard for determining subjective “knowing” in judicial practice. Based on judicial documents and relevant theoretical analysis, a dual-layered system for determining “knowing” should be established, covering both content and degree. In terms of content determination, four restrictive rules should be followed: First, it is sufficient for the actor to recognize that the act meets the objective elements of the crime, without the need for a complete understanding of the specific criminal details. Second, this “knowing” only requires the actor to be aware of the criminal intent or act of another party, without the need for a common criminal intent. Third, the scope of “knowing” is strictly limited to the pre- or during-the-event stage, explicitly excluding the retroactive effect of post-event approval. Fourth, “knowing” should be judged based on substantive criteria, focusing on the actor's ability to actively identify the risk of illegality. At the level of degree determination, it is emphasized that “knowing” should be defined as a “actually knowing” state, meaning that the actor actually knows and there is solid evidence, excluding ambiguous standards such as “should have known” or “might have known”, to avoid expanding the scope of punishment and the risk of objective guilt.