On The Criminal Law Determination Of Network Crime Of Picking Quarrels And Provoking Troubles

With the advent of the information age,the rapid development of the Internet has made the relationship between people unprecedentively close,and the transmission of real-time information such as news,information and communication has become more efficient and convenient.However,the development of things is both sides of the same coin.While the Internet brings benefits to people,its negative effects cannot be ignored.While providing people with convenient communication and entertainment and enriching their leisure life,we media such as weibo,We Chat,news client and popular douyin have also become convenient tools for profits-oriented network writers and "network trolls" to maliciously hype,fabricate and spread network rumors.Therefore,article 5 of the Interpretation on Several Issues concerning the Application of Laws in Handling Criminal Cases such as Defamation by Information Network(hereinafter referred to as the "Interpretation on Network Defamation")implemented by the "Two high schools" in 2013 specifically stipulates the crime of cyber provoking troubles.In the face of the great harm caused by Internet rumors,the Criminal Law Amendment(IX),which came into effect in November2015,clearly stipulates the crime of fabricating and intentionally spreading false information.Internet rumors in this crime include four types of information,namely,making up false dangerous situation,epidemic situation,disaster situation and police situation.The legislative provisions on Internet rumors in the Interpretation and TheAmendment to the Criminal Law(IX)reflect the positive responses of lawmakers to the increasingly complex online society.This paper mainly analyzes the way of dealing with the crime of network picking quarrels and provoking troubles in judicial practice and the problems it brings.Based on the analysis of the two clauses of article 5 of the "Internet Libel interpretation",the cyber crime of provoking troubles can be divided into two categories.The first is to attack or threaten others with abusive or threatening remarks in cyberspace.In addition to having a bad impact on others,it also disturbs the public order,namely,the crime of picking quarrels and provoking troubles with abusive or threatening remarks.The establishment of this crime must satisfy two conditions at the same time,one is that the verbal attack on others reaches a bad degree,the other is that it directly or indirectly affects the peace of social public order.The second category refers to the behavior of making up facts,fabricating facts,forwarding or abetting others to forward false information in cyberspace driven by subjective malice,making use of the convenience of cyberspace to make trouble,causing trouble and seriously disturbing the social public order,which belongs to the crime of picking troubles with false information.In judicial practice,two points should be paid attention to: first,the "false information" stipulated here is not directed to a specific person or thing,on the contrary,the object and content it points to are uncertain.If a person is accused of fabricating false information that infringes upon his right of reputation and lacks factual basis,and propagates and disseminates it on the Internet,this can be applied to the crime of insulting,threatening or provoking a disturbance,or the crime of defamation against a natural person.The second is to cause serious public disorder,not online administrative order in cyberspace,but offline physical order in the real world,such as crowds gathering in squares and sit-ins at the gates of courts.In addition,the abuse of judges can be extended to be understood as disturbing the social and public order,mainly because of the special status of judges,who have actually become the symbol of the right of reputation of state organs,and infringe on the image and authority of the court behind judges.Netizens only vent their grievances against social injustice and release negative emotions.They should be treated withcaution.If it is really necessary,they can be properly dealt with in accordance with the provisions of the Law on Public Security Administration and Punishment for picking quarrels and provoking troubles.The first chapter analyzes the concept of cyber-type picking quarrels and provoking troubles and related issues.Scholars have different views on whether the crime of picking quarrels and stirring up trouble can be used to regulate the behaviors of making things up in cyberspace,making up facts,maliciously using the convenience of information network for no reason and seriously disturbing the public order.There are more differences mainly scholars to the following questions exist controversy in theory,the network space order as order to deal with the real space can be achieve self-consistent theory,and on the network abuse,intimidation,disinformation tale behavior rules for network whether stir-up-trouble crime of infringing upon the citizen's network speech,etc.This paper discusses the two types of network picking quarrels and provoking troubles involved in "Network Libel interpretation",and makes a specific analysis and research on the theoretical disputes involved in network picking quarrels and provoking troubles.The second chapter mainly analyzes the rationality of the network crime of picking quarrels and provoking troubles.Network stir-up-trouble crime belongs to the type of crime of speech,so the paper firstly analyzes the network stir-up-trouble crime and the relationship between free speech and demonstrates the network stir-up-trouble crime in line with the spirit of free speech,and freedom of expression through the network to protect and limit and the harm of malicious comments from two aspects,provide justification for network stir-up-trouble behavior into sin.The core content of the third chapter is the specific identification of the network provoking troubles according to the requirements of judicial practice.This paper mainly through the analysis of the content of the two parts,first analyzes the subjective and objective elements of network stir-up-trouble crime,some of them think worth discussing the detailed research,such as subjective malicious identifying standard necessity and concrete steps,and objectively determined the cause of social public order "serious chaos" standards.Secondly,specific analysis is carried out on the identification of falseinformation,which is demonstrated in detail from two aspects of "falsity" of information and "credibility" of false information.The starting point of this paper is that under the guidance of the values of the network management mechanism based on human rights and rights,combined with the favorable experience in judicial practice and the theoretical achievements in defining the crime of network picking quarrels and provoking troubles,the specific steps and methods for defining the crime of network picking quarrels and provoking troubles are obtained.