Research On Judicial Confirmation Of Crime Of Provoking Quarrels And Troubles By Online Rumors

Crime of Provoking Quarrels and Troubles by online Rumors is the induction of Section II,Clause V of Interpretation of the Supreme People's court and the Supreme People's Procuratorate on Several Problems Concerning the Applicable Laws to Handling Criminal Cases Like Defamation Through Information Network and refers to the fact that if the perpetrator fabricates,disseminates or falsifies information in the information network and causes a disturbance,which results in serious public order disorder,the perpetrator shall be punished for Crime of Provoking Quarrels and Troubles.It is a bold attempt of China's criminal law to intervene in cyberspace and has simultaneously caused great controversy in the academic circle.A number of scholars hold the questioning attitude towards the extension of Crime of Provoking Quarrels and Troubles into cyberspace and believe that there is no independent orderly legal interest in cyberspace that does not belong to public places.In addition,there are certain controversies in problems,such as confirmation standards of false information,manifestation of fabricating and spreading acts and perpetrator's subjective confirmation,which influences the normalized application of the Crime in practice.Based on the rearrangement of relevant scholars' viewpoints,in this paper,combined with criminal law theories,it is attempted to extensively analyze the rationality of Crime of Provoking Quarrels and Troubles by online Rumors and propose the specific standards for confirmation.There are six parts in this papers.The first part is the overview of Crime of Provoking Quarrels and Troubles by online Rumors and mainly extensively analyze the concept and origin of Crime of Provoking Quarrels and Troubles by online Rumors.As a kind of "salvation" initiative,the crime of provoking trouble and causing trouble has become the underlying crime of criminal network rumours.It has closed the criminal circle of rumor crimes and is an important means of curbing online rumours at this stage.The second part is the analysis on act means of Crime of Provoking Quarrels and Troubles by online Rumors that specifically include the confirmation of fabricating and spreading act of false information.In the application of the Crime,false information shall be limited to “the groundless information” with features like facticity,falsity and relevance of reality.The mere act of fabricating false information does not infringe the legal interests while the Crime can only be confirmed by spreading after fabricating.The specific manifestations of fabricating act include original release and tampered release.The specific manifestations of spreading act include forwarding and reply.The fabricating and spreading of false information with the attribute of “provoking troubles” is trouble provoking act of speech expression.The third part is the analysis on the act place of Crime of Provoking Quarrels and Troubles by online Rumors.As for the issue whether cyberspace belongs to public spaces,there are two viewpoints in the academic circle,affirmation and negation.In this paper,the affirmation viewpoint is supported.Under the background of “double-deck society”,cyberspace has already had the the same functions as real space and become “the second space” of people's life.In order to maintain citizens' interests in cyberspace,comprehending cyberspace as “a public space” is a reasonable extensive interpretation.The fourth part is the analysis on consequences of Crime of Provoking Quarrels and Troubles by online Rumors.As for the establishment standard of the Crime,some scholars believe that the Crime can be constituted by causing severe disorder of cyberspace while some scholars believe that the Crime can only be constituted by causing severe disorder of public places in reality.In this paper,the former is supported.There are independent order legal interests in cyberspace and the disorder of cyberspace order is specifically manifested in public psychological panic and broken information order.The real space disorder is merely the condition for more severe punishment of the Crime.As for the specific standards of severe disorder,please refer to the relevant judicial interpretation of Crime of Defamation and judge according to the quantity of clicks,browses and forwarding of online false information.The fifth part is the analysis on subjective fault of Crime of Provoking Quarrels and Troubles by online Rumors.The Crime requires the perpetrator to have “a clear understanding”of false information and “a clear understanding” shall be limited to “clearly know”,excluding“possibly know”.Meanwhile,“clearly know” and “should know” shall be differentiated.Additionally,the subjective fault of the Crime contains deliberation only while “rogue motive"and "malice" are not the excess factors of subjectivity.The sixth part is the discrimination between Crime of Provoking Quarrels and Troubles by online Rumors and Crime of Fabricating and Intentionally Spreading False Information.After releasing and implementing Amendment to Criminal Law(9),Crime of Fabricating and Intentionally Spreading False Information,to some extent,narrows the application space of Crime of Provoking Quarrels and Troubles by online Rumors rather than completely replaces the Crime.There are differences in regulating scope,act place,act consequence and legal penalty setting between the two Crimes,forming the relationship between exclusive crime and basic crime.