Research On The Judicial Application Of Crimes Of Illegally Utilizing The Information Network

The governance of cybercrime is a hot topic in recent year,the demand for governance of cybercrime to this day is still urgent and it also takes patience and hard work.Since the Crimes of Illegally Utilizing the Information Network was added into the Criminal Law,it has faced a lot of difficulties in the academic level,from the basis of punishment macroscopically to the interpretation of regulations microscopically.In judicial practice,this crime was applicated in the absence of clear guidelines until the specialized judicial interpretation was promulgated at the end of October in 2019.Therefore,a more comprehensive description of the judicial cases and then resolve outstanding issues is an effective path for research.The comprehensive review of the information of those cases is carried out from the following angles: the total number of cases,the level of jurisdiction and the form of trials,the manner of behavior,the purpose crimes,the situation of joint crime,the kinds and terms of penalty.After comprehensively considering the above,the intermediate conclusion is that: the application of this crime is not ideal,and the regional distribution is quite different;it is defined as a minor crime;the purpose crimes are distributed in Chapters 2 to 6 of the Specific Provisions of Criminal Law and related to a variety of legal interests.In addition,traditional crimes and Crimes of Disrupting the Order of Social Administration are the main part of purpose crimes.The problems in the judicial application of this crime lie in the judiciary authorities’ understanding of this crime is incomplete,the independent value and application significance of this crime is vacant;some judgments have revealed the signs of expanding the application of this crime;and it is entangled with other crimes.In view of the above problems,I believe that the root cause is that the nature of the crime hasn’t been comprehensively and correctly understood.Therefore,I advocate to solve the above-mentioned problems through the reinterpretation by focusing on the three aspects: Fundamentality,Ensurance and Independence.Fundamentality,it is rooted in the perspective of implementation of preparatory behaviors,lighter in character,and less severe punishments in practice.On the basis of refining manifestations of crimes and referring to the precedents of related judicial interpretations,the positive and negative paths are combined to improve the determination of the “serious circumstances”.The intent of Ensurance is to highlight the value of this crime in filling loopholes in Criminal Law,and call on judicial authorities to correctly understand and actively apply this crime.This article also explores the boundary between this crime and Crimes of Providing Aid for Criminal Activities in Relation to Information Network.The Independence based on the high proportion of traditional offline crimes and Crimes of Disrupting the Order of Social Administration indicates that offline behavior is the key point to show the social harmfulness of this crime,which can be followed to redress two cases of extended application.As for the distinction between this crime of Crimes of Providing Aid for Criminal Activities in Relation to Information Network.“dissociation” is advocated as the judgment standard.In addition,this article quotes and analyzes two Model Cases of this crime to support the above viewpoint.