Criminal Regulation Of Network Trade Credit Speculation

With the development of Internet technology,the e-commerce industry has developed rapidly,and many third-party shopping platforms such as Taobao,Tmall,and JD have emerged.Online shopping has gradually become one of the main ways for people to shop.Different from the traditional shopping mode,online shopping is carried out by consumers purchasing goods through a third-party network platform,without touching the goods.Therefore,the opinions of merchant credit from customers become an important reference indicator for shopping.In order to gain market share and improve competitiveness,some sellers have increased the creditworthiness of online stores by brushing.Although relevant departmental laws and online platforms have adopted punitive measures against such unfair competition behaviors,due to low illegal costs and other reasons,the behavior of trade credit speculation has not been curbed.Conversely,it has become increasingly intense.According to the purpose of the brush list,it can be divided into two types:reputation type brush and property type brush sheet;according to the different parts of the brush sheet,it can be divided into single brush type speculation,mutual brush type speculation,and generation brush type;according to the different effects of the brush list,it can be divided into two categories: positive brushing and reverse brushing.Thebrushing behaviors,which damages the consumers' right to know and property,are destroying the normal market transaction order,hindering the business activities of the inter-operator,and damaging the credibility of the online trading platform.Therefore it is necessary to incorporate it into the criminal law.In judicial practice,the court investigated the criminal responsibility of the organizer for the crime of illegal business operation.This article is based on the law and judicial interpretation related to the crime of illegal business,By analyzing the legal interest of illegal business crimes,whether the credits are illegal,the violation of state regulations,and whether it meets the requirements of judicial interpretation,the irrationality of illegal business crimes is demonstrated in detail.The court has dealt with the crime of reversely trading credit and destroying the production and operation.This paper believes that the reverse credit brushing does not constitute a crime of destroying the production and operation,by explaining the reason through legal interest,behavior,behavioral object and causal relationship.Based on the problems of the court's judgment,This article takes the verdict of illegal business crimes in Zhejiang and Shanghai in 2018 as a sample,and comprehensively analyzes the four behaviors of illegal business crimes in the judicial practice explore the path of "other illegal business practices that seriously disrupt market order." Taking the verdict of the crime of destroying the production and operation in 2018 as a sample,comparing and analyzing the type of behavior,the object of the act,and the subjective purpose,explain the scope of the application of the "other ways to destroy production and management: "other methods" should be equivalent to "destroying machinery and equipment" and "harming farm animals",and result in production that is difficult to carry out.There are disputes in the theoretical circles on the determination of crime and non-crime,sub-crime and that crime in the act of online billing and speculation.The innocence said that it is a new type of civil fraud.It should apply the adjustment means of the Tort Liability Law.The modesty of criminal law requires that criminallaw should not be used before the full use of non-criminal law means.The judiciary directly uses criminal law means is obviously a violation of modesty of criminal law.This article does not agree with the view of innocence.Compared with the huge benefits,civil and administrative measures cannot effectively curb the behavior of brushing.On the contrary,because of the low cost and low risk of illegal activities,the behavior is increasingly spread and included.Criminal law is not a self-sufficient discipline.The provisions of the article have been given new meanings with the development of the times.The rationality of criminal law,which ignores the changes of the times but pursues logic,is questionable.The specific content of the modesty of criminal law should also be changed with the development of the times.The boundary of punishment is not the narrower,the better.If the pluralistic values ??of a particular era cause informal social control to weaken,it will inevitably lead to a tendency to protect the legal interests by expanding the scope of penalties;the criminal law should be shifted from "limited punishment" to "appropriate punishment." Although guilty said that it is affirmative of the penalties of network brushing,this article does not agree with its qualitative.there is a view that the network brushing constitutes fraud,but the deceptive factor in the behavior of brushing is different from fraud.The crime of fraud requires the other party to dispose of the property based on the misunderstanding.In the act of brushing,the opinions of trade credit speculation,the opinions of old customers and the credibility of the store have only a certain reference value and do not have a direct decisive effect on whether the consumer purchases or sufficient for the consumer to purchase the product based on the misunderstanding.The legal benefit of the crime of fraud is the ownership of public and private property,and the act of brushing is a normal economic order.Independent convictions say that the brushing is a new type of cyberspace crime,should be established or added in existing clauses.This article holds that brushing in essence,is still a crime,and it has a certain relationship with traditional criminal behavior.The nature of this kind of behavior should be based on its type.Divide andrule on the basis of division,rather than One-size-fits-all.The brushing is mainly implemented in the virtual cyberspace,it is not fundamentally different from traditional criminal behavior in reality.For the cybercrime that has no essential difference from the traditional crime,the social harm of the act itself does not occur essential change,the regulatory path of such cybercrime is no different from traditional crime.Regardless of whether it is positive or negative,criminal behavior is only extended from the real space to the cyberspace.The network has only become a tool for businesses to commit crimes and has not gone beyond the scope of traditional criminal behavior.Organizing the trade credit speculation is a new type of cyberspace crime,According to the traditional accomplice theory,the "intermediary behavior" does not constitute a crime.However,from a holistic point of view,the organizer helps even teach the merchants to speculate trade credit,the harm of their behavior is far greater than that of individual merchants.Even if the offense is not penalized by criminal law,the organizer should bear criminal responsibility.On the basis of the type division of the network brushing,this paper puts forward the path of the criminal rule system.In the positive direction of brushing,the operator hires or instructs others to purchase the goods and falsely praises them.It is essentially advertising and conforms to the basic characteristics of commercial advertisements,and belongs to the situation of “fictional use of goods or the effect of receiving services”.If the "falsehood" in the crime of false advertising exceeds the scope of general commercial practice or social tolerance and reaches the seriousness of the plot,it should be treated qualitatively with false advertising crimes.Reverse brushing,maliciously buying a large number of goods from the competitor,and giving bad reviews or praise,is a fabrication and dissemination of false facts,the essence of which is the violation of market economic order and goodwill,which should damage the business reputation and goods.The crime of reputation is treated qualitatively.Organize trade credit speculation,the merchant publishes the single-task task information on the platform,and the signature registration becomes a member ofthe platform and accepts the single-tasking through the platform,the organizer has a promoting effect on the completion of credit speculation.In the "one-to-many" crime mode,the helping behavior of the platform is more serious.Even if the merchants do not constitute a crime,they should also investigate the responsibility of the platform to Crime of Providing Assistance for Network Crime.The crime of activity is treated qualitatively.In addition,the business behaviors of the online trading platform,QQ,and YY,although promoting the brushing,but for the user to exchange information and provide daily service behavior,it is impossible to require the platform to carry out all the information one by one.The review,even if the neutral help behavior of the online platform promotes the cybercrime of others,is less likely to be punished.Of course,if the network platform does not fulfill the obligation of information network security management,the regulatory department orders correction but the network platform refuses to make corrections,it may constitute a refusal to fulfill the obligation of information network security management.