Volume 121

In view of the high incidence of information network crimes, the Amendment (IX) to the Criminal Law of mainland China added the offence of aiding information network criminal activities, aiming at cutting off the chain of cybercrime and preventing information network crimes. However, in judicial practice, there are great differences in the determination standard of "knowledge", which has become a key difficulty in the judgement of crime and non-crime. In this regard, the presumption of "knowledge" should be explicitly adopted, and the subjective knowledge of the perpetrator should be presumed through the basic facts, in order to cope with the difficulty of obtaining evidence. At the same time, the term "knowingly" should be interpreted as meaning that the perpetrator clearly recognised or should have known of the unlawfulness of the act of assistance, rather than generalising it to mean that he or she "may have known". In addition, it is not appropriate to mechanically equate the object of knowledge - "another person using information network to commit a crime" - with a completed offence in the sense of a sub-rule of the Criminal Law. Instead, it should be based on the logic of criminalisation of the act, adopt independent judgment, emphasise the ambiguity of the perpetrator's cognition of the improper act and causal foresight, so as to achieve a balance between combating crime and safeguarding rights, and maintain the principle of modesty of criminal law.

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