Research On The Judicial Identification Of The Defiance And Affray Crime Of "Creating Disturbances In Cyberspace"

The rapid development of the information network accelerates the spread of information,and makes information interconnection all over the world.People get closer to others and society through the Internet,and their participation in public affairs is getting higher and higher.However,some individuals or organizations publish or disseminate various false information on the Internet,and harmful consequences have spread to the real life,causing serious chaos in public order.This kind of harmful behavior is in urgent need of regulation by criminal law.Therefore,in September 2013 the Supreme People’s Court and the Supreme People’s Procuratorate published “the interpretation of several issues concerning the application of law on handling criminal cases involving the use of information network”,it punishes such behavior as the crime of picking quarrels and provoking troubles,which is the act of fabricating and spreading false information on the information network,making disturbance and causing serious public disorder.So far,theoretical and practical circles have referred to the content of this provision as "network disturbance type" crime of picking quarrels and provoking troubles.The provisions of judicial interpretation have a certain positive significance in combating the crime of false information on the Internet.However,due to the certain discrepancy between the judicial interpretation and the provisions of the criminal law about the expression of the constituent elements,it has led to certain difficulties in the identification and application of the relevant elements in judicial practice.Through combing and analyzing the current situation of relevant elements of t the defiance and affray crime of "creating disturbances in cyberspace" in judicial practice,it can be found some problems such as the wide scope of "false information",the inconsistent understanding of "causing serious disorder of public order ",the neglect of the identification of "making disturbances" as well as the inaccurate certainty of knowing.The crime of picking quarrels and provoking trouble has the attribute of "pocket crime".If the relevant elements cannot be accurately grasped in practice,it is more likely to lead to the abuse of the crime of "making disturbances on the network" by judicial organs.Therefore,it needs to be reasonably applied in combination with the relevant theoretical basis of criminal law.The act of fabricating and disseminating network information is a form of speech expression.Improper identification of relevant elements is likely to infringe on citizens’ freedom of speech.Therefore,the determination of relevant elements should proceed from the establishment of the nature of the crime.First,the principle of proportionality can be used to measure the interests of freedom of speech and public order.Secondly,There are different specific legal benefits for the crimes of picking and provoking disturbances of different behavior types,and the legal benefits of the crime of "provoking disturbances" is the order of public places.Only when the expression of speech causes serious chaos to the real public place can the crime of provoking troubles be used to regulate it.Finally,the crime of picking quarrel and provoking trouble does not require the motive and purpose of the crime subjectively,but it must be fully aware of the "false information" elements.To clarify the theoretical basis of the crime of “Internet arrogance and provocation”,so as to avoid aggravating the “pocket crime” nature of the crime of creating disturbances in judicial practice,and to realize the rationality of the scope of punishment.In order to make clear the determination of the crime of picking quarrels and provoking troubles by network,we should accurately grasp the applicable limits of relevant elements in practice.To grasp the essence of "false information",all false information should not be regarded as "false information" in this type of crime.False information should be untrue information without factual basis and has the possibility of causing chaos in public order.The judiciary should treat the information involving government staff with caution,and must fully combine the core content of the information and the perpetrator’s subjective motives to make comprehensive judgments.It is clear that the standard of "causing serious disorder of public order" should not be solely based on the amount of network clicks and forwarding,but should be determined by the standard of disorder of public places in the real society.Attach importance to the limiting role of "causing disturbances" and clarify the substantive characteristics of "causing disturbances",which can limit behavior objects and behaviors."Knowledge" should be "really knowing",and combine with the objective performance of the actor "knowing" to carry on the concrete identification.