Research On The Identification Of Network-type Provocation Crime

With the rapid development of the Internet,the functional area of the information network has gradually expanded,covering all aspects of people's lives,and has become an essential part of modern society.Due to the virtual nature and concealment of cyberspace,while bringing convenience to people's lives,a large number of new cyber crimes have also emerged.The new type of cybercrime has a complex structure and various types of behavior,which seriously threatens the stability and development of society.The larger number are targeted at crimes of publishing false information and illegal speech in cyberspace.In order to combat illegal speech in cyberspace,many countries or regions modify existing laws or formulate special laws to adapt to social development and changes.In order to punish online malpractices,on September 9,2013,the Supreme People's Court of the People's Republic of China and the Supreme People's Procuratorate jointly issued the Interpretation on Several Issues concerning the Application of Laws in Criminal Cases Using Information Networks for Defamation,etc.Illegal acts such as intimidation,fabrication,and dissemination of false information are found to be provocations.The interpretation extends the regulation of provocation to cyberspace and breaks through the provisions of traditional criminal law.It is a judicial innovation to use the crime of provoking troubles to punish network wrongdoings,but due to vague regulations and unclear determination standards,different cases in the same case may occur in judicial practice.In this article,the crime of provocation in cyberspace is called the crime of provocation in cyberspace,and according to Article 5 of the interpretation,it is divided into two types,namely the crime of cyber abuse,intimidation and provocation in cyberspace.Troublesome sin.Based on the theory and the judicial case,this article studies the problem of determining the crime of network-type provocation.Aiming at the crime of cyber abusive and intimidating provocation,this article considers the particularity of the Internet,and believes that the identification of "abusive" and "bullying" behaviors in cyberspace must be based on the standards of ordinary people in society,as well as cultural and ethnic customs Judge.To constitute this crime,we must not only have acts of abusiveness and intimidation,but also must reach the level of "bad plot".In addition,starting from the traceability of the crime of provoking trouble,it is argued that "rogue motive" belongs to the subjective illegal elements of the crime,and proposes a specific basis for determination.Aiming at the crime of noisy provocation and troubles on the Internet,this article explores the connotation of "public places",and considers that "cyberspace" belongs to "public places".The meaning of "noisy things" should be appropriately expanded and should be included in The act of disseminating false information;in addition,the "serious public order disorder" caused by the noisy behavior should refer to the actual public order,not the public order in cyberspace;the interpretation stipulates that "causes serious public order disorder" and the criminal law "causes Order in the public place is chaotic,and does not conflict.From "public place order" to "public order" is an expanded interpretation that does not exceed the possibility of national prediction;it is necessary to strictly limit the scope of the "false information" of this crime and reduce the netizens' Violation of freedom of speech;"Knowledge" as a subjective idea is difficult to identify,so it should be based on the presumption rules and from the existing objective facts,it is presumed that the perpetrator knowingly is false information.Only detailed and reasonable provisions on the above key issues can limit the standard of convictions and reduce their pocket attributes.