帮助信息网络犯罪活动罪与他罪交叉或竞合时的问题及认定

Issues and Determina-tions on When the Crime of Aiding and Abetting in the Commission of Cybercrimes Crosses or Competes with Other Offences

摘要: 帮助信息网络犯罪活动罪在司法适用中存在本罪优先适用的现象，这会导致对帮助行为刑罚的不当轻化。并且在帮助行为人将银行卡挂失取现的情况中，罪数应当为一罪还是数罪存在问题。文章结合共犯理论分析得出，应坚持片面共犯理论确立共犯优先适用的标准，并且在涉及其他罪名一罪还是数罪并罚时，结合牵连犯的标准从一重适用。

Abstract: There is a phenomenon of priority application of Crime of Aiding and Abetting in the Commission of Cybercrimes in the judicial application, which leads to inappropriate lightening of penalties for aiding behavior. Furthermore, in cases where the aider and abettor report the loss of a bank card and withdraws money, there is a question of whether the number of crimes should be one or multiple. Through an analysis based on the theory of complicity, the article concludes that the standard of priority application of complicity should be established based on the unilateral complicity theory, and when involving multiple charges, the standard of involvement in the crime should be taken into consideration for sentencing.