On Some Difficult Problems In The Network-based Crime Of Picking Quarrels And Provoking Troubles

With the constant development of the Internet information today,China has increased the number of Internet users.Since there is no network real-name system,everyone on the network by the constraints of a lot less than real life.And network are a channel of express feelings,so people in the network behavior will be more free.In recent years,some criminals began to implement the use of information networkunethical or even illegal and criminal behavior,On the Internet,the behavior of the abuse,intimidation,fabricating false information,spread of false information more and more.In this case,the troublemakers in the network behavior began to attract the attention of people,and the definition of this behavior has caused controversy in the theoretical circle.In September 2013,the Supreme People's Court and The supreme people's procuratoratepromulgated the Interpretation on Several Issues Concerning the Specific Application of Law in the Handling of Defamation and Other Criminal Cases through Information Networks.But in actual recognition process,there are many problems,for example,in my hometown Shang Yu,Zhe Jiang province,some people on the BBS post said "in a major car accident killed nine people",but the actual is 7 deaths,the police to "dummy fact disrupt public order," said its administrative detention for five days.But in An Hui Dang Shan,netizens on personal weibo Posting described together 10 deaths of car accident as 16 deaths accident the public security organs is reversed the decision of the administrative detention.After the author's research,found that due to the different interpretation of the provisions in the judicial organs have different applicable standards in case,appear the phenomenon of "different connection with the sentence" a lot,so it is necessary to further clarify the key issues.The author in the crime of the offender in the process of "knowing" degree,the existing theory generally think of the "knowledge" must be "know" indeed,this is due to the spread of information flow "waterfall effect".But the author thinks that according to different degree of "knowledge" of the subject of specific to the analysis,According to the actor's behaviors are spreading false information people can be divided into four categories: the first is directly fabricated publishers;The second type is a repost forwarding;The third kind is falsified information on;The fourth class is allowing false information disseminator.And among the four categories can also be concrete is divided into four categories: the general public.Well-known public figures and organizations;People have professional knowledge;Network operators."Knowing that" the degree of these people will have different requirements.The author in the process of research "spreading behavior",found that the existing views are comparative analysis in general,no specific distinction between the main body,this article embarks from the behavior main body will be released "spreading behavior" is divided into people's behavior,the disseminator repost forwarding behavior,the general public comments reply behavior,this division is more advantageous to help determine the crime.Of network stir-up-trouble crime to define the concept of "public",in the existing literature generally simply think "cyberspace" belongs to or does not belong to "public" and explains the reason,this paper puts forward "cyberspace" does not belong to "public" point of view and explains the reason,also think it is a legal fiction used in judicial interpretation to thinking,judicial interpretation will be made from "cyberspace" to "public",but there may be suspected of unauthorized,however,have the ultimate way to solve the legislature to make legislative interpretation.In this paper,the order of "cyberspace" does not belong to "public order" is the argument: the concept of network space order without an accurate,the chaos plaguing order in the cyberspace standard is more difficult to define,and disturbing the order of cyberspace behavior into the scope of criminal law regulation,can severely disrupt Internet freedom of speech.This article mainly through the study of network,the second are spreading false information stir-up-trouble crime,of which the offender problem definition of the degree of subjective knowledge,false information and the scope of public order and public issues,in-depth studies are hope for network stir-up-trouble crime form accurate understanding,in practice better able to distinguish between crime and the crime,let network stir-up-trouble crime can from the stigma of "whole",also make the provisions in the judicial practice to better apply.