The Application Problems And Countermeasures Of The Crime Of Defiance And Affray In Cyberspace

With the rapid development of information network,the Internet has great influence on economy and society.On the one hand,we enjoy the delicious feast brought by modern science and technology,on the other hand,we are also troubled by the illegal behavior on the internet.The crime of defiance and affray in cyberspace is a manifestation of the above network illegal behavior.In view of this,in September 2013,The Supreme People's court and the Supreme Procuratorate published the interpretation of several issues concerning the application of law on handling criminal cases involving the use of information network.According to the article fifth,fabricating or spreading false information on the network,creating disturbances or causing serious disruption on public order,should be punished in accordance with the crime of affray.Along with the introduction of the interpretation,it not only caused a great uproar,but also brought theoretical and practical problems.In order to apply the network crime of affray properly,balance the relationship between the protection of speaking and the fighting against crime,and at the same time avoid the irrational expansion of the "pocket trend" of the crime in cyberspace.This article research the application problems and measures of the network crime of affray from four parts.The first part of this article introduces the current situation of the application of the crime of affray.It mainly includes the following aspects: the application of the standard of "false information" is vague,and the information which is not consistently according with the fact is also a false information.The standard of serious confusion in public order is not reasonable,usually view the of web click to a certain amount as a standard,which is not reasonable.The identification of the subjective aspect of the actor is vague.The second chapter of this article introduces the controversial theory caused by the crime of defiance and affray in cyberspace.It has the following aspects: The cyber space is "public places" or not;"public order" can be equivalent to the "public place order" or not;fabricating and spreading false information on the internet is "creating disturbances" or not.In this regard,the author believes that the understanding of cyberspace as a "public place" is still a reasonable interpretation."Public order" is different from "public place order",the former is the subordinate concept of the later.Fabricating and spreading false information on the internet is "creating disturbances".The third part of the article introduces the reasonable application of the relevant elements of the network crime of affray.First of all,the "false information" refers to the information which is unfounded,associated with the real life,more concrete and induced.At the same time,we can identify the false information combined with the legal interest it protects.Secondly,"causing serious public disorder" refers to the serious disorder of the real social,we can not view the web click as a standard.Again,the "malicious" has no specific content,it can not indicate the degree of legal interest infringement,and therefore can not be used as a subjective element.Finally,the actor "knowing false information" does not include may know,it should be limited to should know.In the fourth part of the article,the author points out some problems that should be paid attention to in the application of the network crime.First of all,the main difference between the crime and the network libel is that the object is different.In the practice,the web click to a certain amount is the "serious" standard of libel crime,which can not be applied mechanically to the crime of defiance and affray in cyberspace.Secondly,the mainly difference between this crime and the crime of fabricating and spreading false information is that the content of the false information is different.The meaning of the false information in the crime is more general,but the false information in the latter refers to the false disaster,dangerous situation,epidemic situation,and police situation.Finally,it is necessary to adhere to the modesty of the criminal law,we should pay attention to the relationship between the freedom of speaking and the fighting against crime.