帮助信息网络犯罪活动罪司法问题研究

A Study on Judicial Issues Concerning the Crime of Assisting Information Network Criminal Activities

摘要: 为了应对社会危害性越来越强的网络犯罪，我国在《刑法修正案(九)》中特别设立了帮助信息网络犯罪活动罪。随着该帮助行为被独立地定为刑事犯罪，案件数量激增，得到大家的普遍关注。但由于入罪时间较短，我国法律并无完整规定，对实务中适用仍有诸多问题，例如对法条中的“明知”、“情节严重”的认定标准与适用范围不统一，对该罪与拒不履行信息网络安全管理义务罪、掩饰隐瞒犯罪所得罪、诈骗罪等罪的竞合问题规定不明。从该罪的立法背景和性质入手，深刻了解其适用范围，分析其犯罪构成适用难题，同时利用实证研究本罪在实际运用过程中所出现的困境与问题，着重解决对“明知”的认定标准、帮助行为的内涵以及“情节严重”的司法适用、对该罪与类罪进行区分，以期更好地打击网络犯罪，保护公民财产安全。

Abstract: In the Ninth Amendment to the Criminal Law, in order to respond to cybercrime, which is becoming increasingly harmful to society, the crime of aiding information network criminal activities has been specially established. With the independent criminalization of cybercrime aid, the number of cases has surged and received widespread attention. However, due to the relatively short time of criminalization, laws and legislation of China are not mature, and there are still many problems in the application in practice, such as the inconsistency between the determination standards and the scope of application of “knowing” and “serious circumstances” in the law. The concurrence provisions of this crime with the crime of fraud, the crime of refusing to perform the obligation of information network security management, and concealing the crimes offended by crimes are not clear. From the legislative background and nature of this crime, the scope of application of this crime is deeply explored, analyzing the difficulties in the application of the crime, and using empirical evidence to study the dilemmas and problems that arise in the actual application of this crime, focusing on solving the criteria for determining “knowing”, the connotation of helping behavior, and the judicial application of “serious circumstances”, so as to better combat cybercrime and protect the safety of citizens’ property.