The Judicial Imposition of the “Knowing” Element in Cybercrime of Assisting in Information Transmission and the Reconstruction of Rules

Abstract

With the development of the digital economy, the cybercrime of assisting information transmission (hereinafter referred to as “aiding crime”) has experienced an explosive growth, becoming a highly prevalent type of cybercrime. However, there are numerous difficulties in the judicial determination of the core constituent element “knowing” in this crime. In academia, there is disagreement over the determination of “knowing”, leading to three mainstream views: “clearly knowing”, “clearly knowing versus possibly knowing”, and “clearly knowing versus should know”. In judicial practice, issues arise such as inconsistent application standards, vague definitions in judicial interpretations, and difficulty in forming an evidence chain. Based on this, it should be clarified that “knowing” includes both “clearly knowing” and “should know”. At the same time, the rules for determining “knowing” should be reconstructed by improving laws and regulations, the boundaries of “comprehensive determination” should be delineated, and multiple fperpetrators such as the perpetrator's experience, the amount involved, and bank transactions should be comprehensively considered, persevering in the principle of unity between subjectivity and objectivity in the determination. For the fperpetrators mentioned above, those with the most significant influence are given higher weights to establish the weight hierarchy among different fperpetrators. This paper provides a reference for judicial authorities to standardize the application of the “aiding crime” to achieve a balance between crime and punishment.