First, the constitutive elements of helping information network crime
The first is the subject of crime. The subject of this crime is the general subject, including natural persons who have reached the age of 16 and have the ability of criminal responsibility, and the unit can also become the subject of this crime.
The second is the subjective aspect of crime. The subjective aspect of this crime is intentional, that is, knowing that helping others commit information network crimes will cause damage to the country's information network management order, still hope or let this harmful result happen. In addition, this crime also requires that the perpetrator must know that others are using the information network to commit crimes, including both the explicit knowledge of the perpetrator and the information that the perpetrator should know.
The third is the target of crime. The object of this crime is the state's management order of the normal information network environment. Using information network to commit crimes certainly destroys the stable, healthy and orderly information network environment. It has seriously violated the state's management order of the normal information network environment, and the act of providing help to these information network criminal activities has also undermined the state's management order of the normal information network environment.
The fourth is the objective aspect of crime. The objective aspects of this crime are: providing technical support such as Internet access, server hosting, network storage and communication transmission. For information network crime, or to provide advertising promotion, payment and settlement, and the circumstances are serious.
Second, what role can lawyers play in helping people believe in crime?
Lawyers who help letter crimes can play different roles in different stages of criminal cases:
1, investigation stage
In the investigation stage, the lawyer's primary task is to understand the charges charged by the criminal suspect, the specific investigation organ and the relevant situation of the case from the periphery.
After understanding the basic content, lawyers began to study the relevant legal provisions of the crime and local sentencing guidance. Lawyers follow up the progress of the case, communicate the case to the investigation organ, and understand the direction and time limit of the case handlers.
In addition, if objective facts exist, lawyers can investigate and collect evidence through legal procedures or apply for investigation and evidence collection according to law to obtain evidence of innocence and guilt of criminal suspects.
2. Review and prosecution stage
Lawyers prepare entrustment procedures and relevant official letters, go to the procuratorate to understand and copy the basic information of the criminal suspect involved, understand the prosecutor, assistant and contact information of the criminal suspect, understand the specific time when the criminal suspect was arrested, and understand whether the criminal suspect's case is returned for supplementary investigation.
Then choose whether you can make an appointment to apply for marking according to the actual situation. Those who can apply for marking shall apply according to law and go to the case management department of the procuratorate for marking after being notified by the prosecutor.
After reading the file, the lawyer began to understand all the evidence and documents of the case, conduct in-depth and meticulous research, and formulate defense strategies.
After consulting and analyzing the whole volume, combined with my usual experience in handling cases, I drafted a written legal opinion and served it to the prosecutor, and then kept in communication with the prosecutor on the case process. Apply for bail pending trial in time according to the specific circumstances.
3. Trial stage
Before the trial, through the investigation stage and the examination and prosecution stage of the case, the lawyer can make clear the direction of the lawsuit, whether it is an innocent defense or a lighter defense.
Then, if the defendant is innocent, the lawyer will analyze the witness's confession and the suspect's confession according to the overall situation of the case, and combine other types of cases and types of evidence with various characteristics to judge many contradictions between the evidence and the probative force of the evidence.
Then, if you choose the crime of pleading guilty lightly, the lawyer will look for the confession and defense that is beneficial to the criminal suspect and defendant according to the evidence loopholes of the investigation organ, and find the sentencing point that enjoys legal circumstances and discretionary circumstances when sentencing.
During the trial, the defense opinions should be analyzed and demonstrated from different aspects such as whether the facts are clear, whether the evidence is sufficient, whether the applicable law is accurate, and whether the proceedings are legal, and put forward opinions and reasons for the conviction and sentencing of the case.
On the one hand, lawyers are professional legal service providers with rich legal knowledge and experience in handling cases and are familiar with defense business.
On the other hand, the law gives lawyers more rights than other defenders, making it easier for lawyers to exercise their defense rights and better accomplish their defense tasks.
Legal basis: People's Republic of China (PRC) Criminal Law.
Article 65 A criminal sentenced to more than fixed-term imprisonment who commits a crime that should be sentenced to more than fixed-term imprisonment within five years after the execution of the punishment or pardon is a recidivist and should be given a heavier punishment, except for negligent crimes and crimes committed by people under the age of 18.
The time limit prescribed in the preceding paragraph shall be counted from the date of expiration of parole for criminals who are paroled.
Article 66 A criminal who commits the crime of endangering national security, terrorist activities or organized crime of underworld nature shall be punished as a recidivist if he commits any of the above-mentioned crimes at any time after the execution of the punishment or the pardon.