Research On The Crime Of Illegal Use Of Information Network

Article 29 of the Criminal Law Amendment(9)adds the crime of illegal use of information networks,which independently incriminates acts that are still in the preliminary stage in cyber crimes.The move shows that the legislature has moved forward the timing of criminal regulations to meet the needs of punishing cyber crimes.Since this crime is a new crime,theoretically there are controversies around the legal interest of the crime,the interpretation of the constituent elements,and the demarcation of related crimes.In judicial practice,there are difficulties and perplexities in the application of this crime.For this reason,based on the existing cases and literature,this article discusses the application of the crime of illegal use of information network from four parts,with a view to bringing some help to theory and practice.The first chapter of this article discusses the criminal regulations and practice of the crime of illegal use of information networks.Due to the lack of legitimacy and stereotype of formal preparatory offender in the punishment on criminal preparation,judicial organs have formed the practical rationality of “less punishment”.The promulgation of this crime can resolve the above-mentioned dilemma and achieve an early strike on cyber crimes.The author searched the judgment documents of the courts across the country on the crime of illegal use of the information network since the implementation of the Criminal Law Amendment(9),and found that the number of judgments has been increasing year by year,but the problems exposed have become more apparent.The first is the lack of clear understanding of the legal interest of this crime,which in turn leads to the confusion of judgment documents on the distinction between crime and non crime,between this crime and that crime.Secondly,the interpretation of "illegal crime" is over generalized,including some less harmful behaviors.Finally,the boundary between this crime and related crime is blurred,mainly reflected in the boundary between crime of fraud,crime of helping information network crime and others.The second chapter of this article discusses the legal interest of the crime of illegal use of information network.Theoretically,there are two views on this issue,one is that the legal interest of this crime is the traditional criminal legal interest,and the other is that the security management order of information network is the legal interest of this crime.The author agrees with the latter view.First,in terms of the crime system,this crime is an independent crime rather than a sentencing rule,which determines its legal interest that are different from traditional crimes.Second,in terms of similar crimes,this crime is located in the crime of disrupting public order.Information network security management order is subordinate to public order.Finally,in terms of behavior characteristics,this crime is a cyber-means-type and cyberspace-type crime.The first to be protected should be the management order in cyberspace.The third chapter of this article analyzes the constituent elements of the crime of illegal use of information network.There are three issues.Firstly,how to interpret the scope of "illegal and criminal".In this regard,there is a dispute between limited interpretation and expanded interpretation.From the perspective of substantive interpretation,the author believes that the teleological interpretation can be used to interpret "illegal and criminal" as administrative illegal and criminal.Secondly,how to interpret "publish information of illegal and criminal activities".The author believes that the nature of the "publish" behavior is preparatory behavior,and the information carrier contains both direct and indirect carriers.Third,how to interpret "for the implementation of illegal and criminal activities".The author believes that this crime does not exclude situations preparing for the crime of others.The fourth chapter of this article is about the demarcation between the crime of illegal use of information network and related crimes.According to the author's searching results,the crimes often found to be controversial with this crime in judicial determination are the crime of fraud,the crime of helping the information network crimes,and the crime of refusing to perform the obligations of security management of the information network.In the boundary with the crime of fraud,when the perpetrator commits both the crime of illegal use of the information network and the the crime of fraud,it will constitute implicated offender,which applying heavier regulatory penalties.At the same time,the conviction of sending fraudulent text messages by pseudo base stations varies according to the number of text messages sent and the amount of frauds verified.The differences between the crime of helping information network criminal activities and this crime are mainly reflected in the type of behavior,the stage of the behavior,the form of intention;the distinctions between the crime of refusing to perform the obligations of information network security management and this crime should start from the behavior mode and the subject of the crime.