The Defiance And Affray Crime In Cyberspace

The Internet has had an unpredictable impact on China's economic and social life with the rapid development of science and technology.The Internet has indeed brought about earth-shaking changes in people's lives.We also enjoy the convenience and convenience of network technology.However,new criminal models are also breeding in the network soil.For example,the act of fabricating and distributing false information to disrupt social order is one of the most representative criminal acts in recent years.The Supreme People's court and the Supreme Procuratorate published "Interpretation of Several Issues Concerning the Application of Laws in the Use of Information Networks to Implement Criminal Cases"(hereinafter referred to as "Interpretation of Internet Defamation")in September 2013.The second paragraph of Article 5 of the Interpretation stipulates that if false information is fabricated or it is known to be fabricated false information,it is organized or instructed to spread on the information network,causing troubles and causing serious disorder in public order.Shall be convicted with the second paragraph of Article 293 of the Criminal Law and punished as the crime of picking trouble.Because the sin occurred in cyberspace and is a type of crime of picking quarrels and provoking trouble.The author refers to this kind of behavior as "the defiance and affray crime in cyberspace."According to the second paragraph of Article 293 of the Criminal Law of the People's Republic of China,making troubles and causing serious disorder in publicplaces,constitutes the crime of picking quarrels and provoking trouble.By comparing the constitutional elements of the two articles,it can be seen that there is a certain difference between the two: Is it violate the principle of crime to transplant the crimes that occur in the actual "public places" into the "cyberspace" ? Does expanding the "order in public places" to "public order" violate the criminal law? Therefore,there is no end to debate about whether the defiance and affray crime in cyberspace is an over-authoritarian interpretation.In addition,whether the defiance and affray crime in cyberspace requires the perpetrator to have the rogue motivation;how to define false information also needs to be carried out.Only by thoroughly and thoroughly analyzing the constituent elements of the defiance and affray crime in cyberspace can we find a reasonable way to apply the Internet Interpretation,avoid the irrational expansion of the crime in judicial practice.Balance the contradiction between this and the freedom of speech enjoyed by citizens.these are also the issues that this article will focus on.The first chapter of this paper lists the relevant laws and regulations governing online rumors before the promulgation of "Interpretation of Internet Defamation".It is concluded that these laws and regulations are scattered and do not form a complete cybercrime legal system.And the level of effectiveness is low,it is not universally binding,and it cannot effectively play its proper education and punishment.with the frequent occurrence of fabricating online rumors and serious disruption of social order,there is a real need to enact such an judicial interpretation.The second chapter of this paper focuses on the subjective aspects of the defiance and affray crime in cyberspace.First of all,the rogue motive is the criminal motive for the abolished crime,and it is vague and difficult to identify.Denying the motive of hooliganism does not mean denying the criminal motive of the defiance and affray crime in cyberspace.Therefore,the defiance and affray crime in cyberspace does not require the perpetrator to have a rogue motive.Secondly,"knowing" requires the actor to "make sure" that it is fabricated false information,not including "should know",otherwise the perpetrator is too demanding.And "malicious" can not be thesubjective element of the defiance and affray crime in cyberspace.The third chapter of this paper makes a detailed interpretation of the objective elements of the defiance and affray crime in cyberspace.First,as far as the place of behavior occurs,it is not homogenous to spread false information in the cyberspace and make speeches in the public place.In this sense,it is not inappropriate to interpret the cyberspace as a "public place." However,it should be noted that in general,cyberspace is not a public place,and the two cannot be equated.Second,"false information" must be understood as "a message without facts",rather than "untrue,unrealistic news." Third,making up and distributing false information on the Internet is not a crime of speech that scholars are worried about.On the contrary,it is consistent with the characteristics of “starting troubles” in the sense of criminal law.Fourth,the "serious confusion of public order" must be strictly interpreted as "causing serious order disorder in public places" in the real society.