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网络帮助行为具有内在冲突的属性,一方面其具有独立于正犯的特性以及严重法益侵害可能性的特点,另一方面其又具有中立性。这两种特点造成是否应对其进行刑法规制难有一致意见。但随着《刑法修正案(九)》规定了帮助信息网络犯罪活动罪之后,可以说我国正式确立了帮助行为正犯化规制模式。该罪在司法实务中已有判例,为更好理清本罪适用中可能具有的问题,可采用分解式方法解释本罪。对该罪的“明知”应以“技术支持”“帮助”的功能性区分为基础加以认识;对该罪中“犯罪”应立足于罪刑法定原则与德日构成要件阶层理论,做双层次理解,同时“违法(违反行政法)”立足于本罪的立法目的解释为属于“犯罪”未尝不可;对该罪的处罚范围和程度,应结合立法目的处理之。
Network-assisted behavior has inherently conflicting attributes, which, on the one hand, are characterized by its independence from the guilty as well as the possibility of grave breaches of its legal rights, and on the other hand they are also neutral. Whether these two kinds of characteristics make it difficult to agree on their criminal law regulation. However, with the “criminal law amendment (IX)” provides for the crime of helping information network criminality, we can say that China formally established to help conduct behavior is the criminalization mode. The crime has judicial precedents, and in order to better clarify the possible problems in the application of this crime, we can use a decomposition method to explain the crime. The “knowing” of the crime should be recognized based on the functional distinction of “technical support” and “help”; the “crime” in the crime should be based on the legal principle of crime and punishment and the composition of Germany and Japan Elements of stratum theory, to do a two-level understanding, at the same time “illegal (violation of administrative law) ” based on the legislative purpose of this sin is interpreted as belonging to “crime ” is not a bad idea; the scope and extent of punishment for the crime should be combined Legislation to deal with it.