| With the continuous development of science and technology,the relationship between the virtual world and real world is no longer a derivation instead of a binary balance.Under the background that the virtual world space tends to expand,the space rules tend to be perfect,and the virtual world plays an increasingly important role in the real world,the law is becoming more and more important to the regulation of cyberspace,and the crime of defiance and affray,as one of the important crimes of regulating online words and deeds,has been controversial in the academic circles.The first part of this paper,through the analysis of two typical cases in Shanghai,raises several controversial identification issues of the network crime of defiance and affray in the academic circle,which are false information,cyberspace and serious public disorder.The second part is the argumentation of related problems in the identification of false information.The falsity of information is the basis of criminalization.If the doer spreads the real information on the Internet,then it can’t be convicted of the crime of defiance and affray by the network.This part analyzes the characteristics of false information,distinguishes it from network rumors,and analyzes its objective description,subjective evaluation,social harmfulness and the act of doer knowingly or intentionally,so as to fundamentally clarify the concept of false information and matters for attention in judicial application.The third part is the identification of cyberspace-related issues,which is controversial in the theoretical circle.Firstly,opinions are divided in the academic circles over whether cyberspace can be legally incorporated into public places in the real world for regulation to balance the right of citizens to freedom of speech and to maintain social order.Secondly,the word "place" in "public place order" in the crime of defiance and affray "is deleted in the judicial interpretation,which has caused a lot of discussions among scholars on its expanded interpretation or analogical interpretation.Thirdly,the definition of serious public disorder is not proclaimed in the law.In the process of referring to other laws and interpretations,how to safeguard judicial justice and protect public opinion has become its primary goal.The fourth part is the distinction of concurrence of the network-based defiance and affray crime and other crimes.The nature of pocket crime of the defiance and affray crime make it easy to get concurrent with other crimes,which requires distinguishing its characteristics so as to determine the nature of relevant issues in the process of judicial cases. |
