Principalization in Criminal Imputation of Online Facilitating Acts

Abstract

Online facilitating acts refer to conduct in which internet service providers, in the course of their routine operations, provide technical support for crimes committed by others. Such acts are characterized by both technicality and neutrality, and the actors generally lack the volitional element of actively pursuing the completion of a crime. Within the structure of cybercrimes, facilitating acts exhibit a trend of alienation—manifested in heightened independence and expanded harmfulness. The “one-to-many” model of facilitation may render its social harm greater than that of the principal offense, while the virtual nature of cyberspace weakens the communication of intent between facilitators and principals, making subjective culpability difficult to establish. Consequently, the traditional accomplice liability framework—centered on the principles of subordination and common intent—proves inadequate. Therefore, treating online facilitating acts as principal offenses (principalization) has become a necessary approach to address practical needs. In its specific application, the subjective element should adopt “actual knowledge” and “constructive knowledge” as the standards for determining knowing. Objectively, the scope of criminalization should be limited by substantive criteria such as whether the conduct complies with industry norms and the timing of knowledge, considered in light of legitimate business practices and the unlawful nature of the assisted conduct. At the same time, the principalized offense should serve as a “residual” ground for liability, giving priority to applying accomplice liability or other offenses with heavier penalties to prevent excessive expansion of the criminal sphere.