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

In November 2015,the Ninth Amendment to the Criminal Law added the crime of illegally using information networks as Article 287-1 after Article 287 of the Criminal Law.Since the addition of this crime,there have been many debates and different views in criminal law theory and judicial practice on issues such as the protection of legal interests,the nature of legislation,constituent elements,and the demarcation of crimes.The relationship between the above issues is inextricably linked,the most important of which is the understanding of the legal interests and legislative nature of the protection of this crime,which,if on the right track,are of fundamental significance for the identification of other issues,which this article will focus on.In November 2019,the Supreme People’s Court and the Supreme People’s Court issued the Interpretations on Several Issues Concerning the Application of Law in Handling Criminal Cases Involving the Illegal Use of Information Networks and Assisting Information Network Criminal Activities(hereinafter referred to as the "Interpretations on Cases of Using Cyber Crimes"),which has been implemented to a certain extent to dissolve some barriers to the application of this crime.However,in the context of the rapid expansion of information networks,there are still some confusions and difficulties in this crime,and how to solve it needs in-depth analysis.This article is divided into four main parts:The first part is the determination of the legal benefits of the protection of this crime.On the one hand,this crime belongs to a crime that uses the Internet as a tool,and its infringement process will inevitably cross the virtual cyberspace and eventually affect the real space.Choosing in what space to explore the legal benefits of this crime is a difficult problem in the first place;On the other hand,if the legal benefits of this crime are sought in cyberspace,due to the late start of China’s legislation on network security and the incomplete network security assurance system,the difficulty of selecting legal benefits has increased sharply when the basic connotations of some basic terms such as "network society","cyberspace order" and "network communication order" are still controversial.The viewpoints related to the protection of the law of this crime include the theory of information network security management order,the theory of public information order,and the theory of realistic public management order.This paper argues that the information network security management order is more reasonable,and on the basis of recognizing the legal benefits,the protection legal interests of the types of acts 2 and 3 of this crime are further embodied into the information network content security management order.The second part explores the nature of the crime.There are three types of acts in this crime,and there is a view that all three types of acts belong to preparatory acts for crimes,and they are the implementation of preparatory acts that are independently criminalized by preparatory acts;There is also a view that it is a dualistic theory that includes the implementation of preparatory acts and the pure implementation of acts;There is also a view that it is an independent criminalization theory that satisfies the basic characteristics of the crime.Taken together,the formation of each doctrine cannot bypass the discussion of the "preliminary" nature of the three types of conduct of this crime.This article is also based on "preparation",and finally chooses the independent criminalization theory.The third part is an analysis of the constituent elements of this crime.This part focuses on two analysis points: First,the definition of this crime as a "violation of the law"."Illegal crime" is related to the scope of punishment of this crime,and in order to prevent this crime from falling into the shackles of "pocket crime",it is necessary to adhere to the idea of limiting its connotation.At the same time,in order to meet the needs of the new situation of combating cybercrime,expansion is inevitable.Therefore,this article agrees with the theory of relative expansion.The second is the determination of the "serious circumstances" of this crime.Not only need to consider the invalidity of similar interpretations and pay attention to the standard of dissemination,reasonably select various incrimination criteria,such as "number of information","number of website registrations","number of forwards","actual clicks",etc.,it is also necessary to measure the different social harmfulness of the three types of conduct of this crime,and it is also necessary to appropriately raise the quantitative threshold of various incrimination standards from avoiding the emergence of acts that improperly expand the scope of punishment for this crime.The fourth part is a study of the distinction between this crime and other crimes.With the help of empirical analysis,this paper summarizes the most confusing crimes with this crime,including the crime of aiding information network criminal activities and the crime of fraud,and clarifies the relationship between them.