摘要： 近年来随着帮信罪案件数量的激增,学界产生了对本罪“口袋化”的普遍忧虑,本罪规范属性之争逐渐演化为存废之争,亟待刑法理论对此进行及时、充分的回应。通过对中部某市20212023年1796份帮信罪刑事判决书的实证分析,可发现帮信活动日趋多样化,本罪构成要件行为分化为组织化、存在组织化可能与无线索指向组织化三种类型。司法实践与学界既有观点缺乏对帮信行为结构分化的认识,在对三类帮信行为进行刑法评价时面临诸多障碍。通过明确本罪的规范属性为实质预备犯,构成要件已分化为组织型与非组织型实质预备犯,依据实质预备犯的客观与主观行为不法判断标准,可准确厘定本罪与上游犯罪共犯、本罪与关联犯罪的关系,划分帮信活动参与者的刑事责任,并划定帮信活动参与行为罪与非罪的边界。

关键词: 帮助信息网络犯罪活动罪, 行为结构分化, 组织化, 实质预备犯

Abstract: In recent years, with the surge in the number of cases of the offence of aiding cyber-related criminal activities, the academic community has generated widespread concern about the “pocketing” of this offence, and the dispute over the normative attribute of this offence has gradually evolved into a dispute over its existence and abolition, which urgently requires a timely and adequate response from criminal law theories.Through the empirical analysis of 1796 criminal judgments on the offence of aiding cyber-related criminal activities in a city in central China from 2021 to 2023, it can be found that the activities of aiding cyber-related criminal activities are becoming more and more diversified, and the constitutive acts of this offence have been divided into three types: organized, potentially organized and with no clues pointing to organized.Judicial practice and the existing academic viewpoints lack an understanding of the structural differentiation of the act of this offence, and therefore face many obstacles in application.By clarifying that the normative attribute of this offence is substantive preparatory offence, and the types of its constituent elements have been divided into organized and unorganized ones, the relationship between this offence and the complicity of the upstream offence, and the relationship between this offence and the related offences can be accurately determined, the criminal liability of the participants of the activities of aiding cyber-related criminal activities can be distributed, and the boundary of criminalization can be delineated based on the objective and subjective judgement criteria of substantive preparatory offence.

Key words: Offence of Aiding Cyber-related Criminal Activities, Structural Differentiation of Act, Organized, Substantive Preparatory Offence