Research On Judicial Difficult Issues For The Crime Of Illegal Use Of Information Network

Under the background of the comprehensive network and alienation of traditional crime,the industrialization and refinement of network crime and the "decentralization" of network space,the behavior of "mass implementation and low damage" implemented by network platform and tools should be regulated by criminal law.The establishment of the crime of illegal use of the Internetwork is of great significance.However,there are many difficult problems in the crime of illegal use of the Internetwork,which need to be further studied.This paper is divided into three modules,the first module discusses the fundamental theory of the crime of illegal use of the Internetwork.The crime of illegal use of the Internetwork refers to the serious behavior of publishing information or setting up websites and communication groups with the content of "illegal and criminal" activities.The crime regulates three types of behavior,and "enumerates + covers the bottom" of "illegal crime" activities.Judicial interpretation limits the scope of "illegal crime" to "criminal act and illegal act which belongs to the type of behavior stipulated in the specific provisions of criminal law but has not constituted a crime".The protection of this crime can be reduced to the security legal interest of cyberspace,which may be infringed by the relevant "illegal and criminal" acts.The accomplished state of this crime is abstract dangerous crime.Further divided from the way of risk establishment,this crime belongs to cumulative crime.The behavior of illegal use of information network needs to be accumulated to a certain "threshold" to have abstract danger,while the single use behavior only causes a small amount of abstract risk,which can not be identified as constituting this crime.The second module discusses the problems existing in judicatory practice of the crime of illegal use of Internetwork.As for the elements of "illegal crime",the judicial interpretation has made detailed provisions,but in judicial practice,it is still unable to avoid the wrong application of charges caused by improper understanding.Based on the particularity of illegal use of information network,this crime is often implicated with related charges,but the basis of identification is unclear in the application of the crime.There are still some problems in this crime,such as the unclear distinguishing method when it coincides with related crimes,the boundary between the crime and relevant administrative punishment,and the punishability of incomplete form is unclear.The third module discusses the methods to solve the problems in judicial application.The definition of "illegal crime" should be further limited to the behavior that can be carried out through the network,belongs to the behavior type specified in the relevant accusation,and may actually infringe or threaten the legal interests protected by the crime.The behavior of publishing information about soliciting and whoring does not belong to one type of behavior in the crime of introducing prostitution.The behavior of using information network containing information content of soliciting and whoring cannot constitute this crime.The use behavior stipulated in this crime and the subsequent practice behavior form causality in objective aspect,and have clear implicative intention,so it constitutes implicated crime.The object of the two criminal acts is connected with each other,and the object of infringement is identical.Therefore,we should choose one of the implicated criminals to be punished severely.When the crime is distinguished from the crime of disturbing the management order of infinite electric communication,it should be clear that the act of issuing or establishing this crime can only act on the terminal equipment at the user level in the mobile communication network structure.The key difference between the crime and the crime of helping information network crime lies in the illegality of the content contained in the behavior and whether the auxiliary behavior can be implemented and convicted.In the judgment of administrative punishment and criminal punishment,it is necessary to carry out systematic treatment,that is,to set up flexible adjustment space between administrative law and criminal law punishment.The unfinished form of this crime is not punishable.