Problems Of Applying Affray Crime To Spreading Rumors On The Internet And Its Countermeasures

In September 2013, the Supreme People’s Court and the Supreme People’s Procuratorate promulgated the judicial interpretation on some issues of how to apply laws in internet defamation cases, which, for the first time, made it clear that spreading false information online, creates disturbances and serious disruption of public order, would be convicted and punished for the crime of affray according to the 4th item of the 1st paragraph, article 239. " However, this interpretation triggered a controversy both in the society and judicial practice, like although facts of the crime were similar in each case, but the results were quite different. Even in same judgments, the expression on facts and grounds were still with bugs. The main reason for those problems is that "interpretation" breaks the literal meaning of criminal law, applies affray crime, which can only be used on "public place", to the internet, mixes the meaning of related concepts, and with no incriminatory standard. So, it is necessary to further study the original concept, essence and the constitution elements of this crime, make the true meaning of "public places" and "public order" clear, and understand the essence of the internet correctly, those are important both in theoretical and practical ways for the analysis of the incriminatory standard and judicial practice.This paper, besides the introduction and conclusion, can be mainly divided into three parts:overview of the internet-rumor-type affray crime network rumors, the problems that exist when prosecuted for one’s affray criminal liability for spreading rumors on the internet and how to handle internet rumors with criminal law.The first part mainly discusses basic situation like the background, characteristics and the constitution elements of the internet-rumor- type affray crime. First, the appearance of this crime relies on the sustained and rapid development of internet. There are difficult in the identification and regulation because of its particularity, and that is the main background of the crime. In the objective aspect, this crime requires " fabricating and spreading false information, creating disturbances on the internet."The second part is the core of this paper, mainly argues from how the "judicial interpretation" has problems from three aspects. To draw the conclusion that the judicial interpretation has break the crime law through the analysis to the understanding of the criminal law of the affray crime and the essence of internet; to analysis the typical verdict according to the interpretation, testify the irrationality of the interpretation which are the problems like the incriminatory standard is fuzzy, and discretionary space is too large, etc; and discusses the adverse consequences of this interpretation in the reality.The third part focuses on how to solve the problem, which is, how to use the criminal law means to deal with the spread of internet rumor and prevent its harmful consequences. Which includes reasonable reference from foreign criminal law measures dealing with internet rumors, the adoption of the relevant domestic academic point of view, and the relevant provisions from "Amendment (IX) to the Criminal Law ", to get the coping strategies to the internet rumors, which both meet the public expectations and the original meaning of the crime law.