A Study On The Application Of The Creating-disturbance Type Of The Crime Of Pick Quarrels And Provoking Trouble

The progress of science and technology has brought about the change of life style.Information network is closely related to people's work and life.According to relevant data,the number of netizens in China has reached 800 million,more than half of the total population,and has really entered the network era.As a coin has two sides,some illegal behaviors have also arisen along with the continuous development of the Internet.Because of the virtual nature of the network,it is often difficult to distinguish between the true and the false in the information network,so some people use the characteristics of the network to deliberately fabricate and disseminate some false information,in order to trigger social panic and even induce mass riots with unknown truth and disturb social public order.In order to deal with the network chaos,in September 2013,The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Specific Application of Law in the Handling of Defamation through Information Networks and Other Criminal Cases(hereinafter referred to as Interpretation)has adopted,in which the article 5,paragraph 2 of the Interpretation defines the act of fabricates and spreads information on an information network as the creatingdisturbance type of the crime of pick quarrels and provoking trouble(hereinafter referred to as the creating-disturbance type of crime on network).It has aroused controversy among many scholars,which is mainly manifested in the boundary of the crime and the elements of its constituent elements.Whether cyberspace belongs to "public places",whether it is reasonable for "public places order" to be extended to "public order" in the Interpretation,what is the standard for "serious disruption",and how to define "false information" need to be clarified.The crime of picking quarrels and provoking troubles has been criticized for its nature of "pocket crime".In addition,the crime of picking quarrels and causing troubles on the Internet also involves the freedom of speech of citizens,which should be applied with caution.Based on the provisions of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate and the analysis of relevant cases in practice,this paper studies the application of the crime of picking quarrels and provoking troubles in the form of network disturbance,so as to provide reasonable suggestions for the application of Interpretation.This text is divided into three parts,a total of more than 34,000 words.The first part is an overview of the creating-disturbance type of crime on network,its background,characteristics and so on,combined with the collected cases to summarize the problems and reasons in the judicial.Compared with traditional crime of picking quarrels and provoking troubles,the creating-disturbance type of crime on network has the characteristics of particularity of space,universality of harm and concealment of crime.Through comparative analysis of criminal cases and administrative cases,it is concluded that the application of Interpretation has some problems in the elements of constituent elements and the boundaries of related crimes.The main reason is that it is eager to govern the expression of network speech,making it difficult to distinguish between crime and non-crime,this crime and that crime.The second part is the introduction of the theoretical basis of the application of the creating-disturbance type of crime on network,due to the vague Interpretation,we should follow the principle of a legally prescribed punishment in the macro to explain its rules,limits "public order" interpreted as "public place order",the network has common attributes but not in public places.The law protects relative freedom,in the context of Internet,freedom of speech plays an important role in participating in democratic decision-making and supervision.Therefore,the boundary between criminal law and freedom of speech should be clarified to avoid punishing crimes blindly.The third part provides specific application Suggestions for the creating-disturbance type of crime on network.The criterion of "serious disruption" should be that it causes serious disruption of the actual social order.False information is not always harmful,so we should distinguish facts from opinions,and make a comprehensive judgment based on whether the false information has any basis,and the degree of association with society.Disseminating false information is a means of making a riot,but the two can not be identical.Making a riot requires the conditions of crowd and public places."Malice" does not constitute a subjective element of the crime of picking quarrels and provoking troubles."knowing" should be understood as "knowing clearly",excluding "should know".In addition,to distinguish the creatingdisturbance type of crime on network with the crime of fabricating and intentionally spreading false information and the crime of defamation on network,the identification standard of the crime of defamation on network can be cited,but it cannot be the only standard.Interpretation should connect with the criminal law effectively.