Research On The Judicial Determination Of The Crime Of Illegal Use Of Information Network

With the development of information technology,traditional crimes are gradually alienated,and online crimes are showing a trend of industrialization.In this context,some illegal and criminal information with "low damage" is widely spread through the information network and "massive implementation",resulting in significant social harm and requiring criminal law regulation.In this context,China’s Criminal Law Amendment(9)has added the crime of illegal use of information networks.Although it has played a certain positive role in combating new types of cybercrime,through sorting out the specific identification of this crime in judicial practice,it has been found that there are problems in the judicial identification of this crime.The scope of punishment for this crime is unclear,and there is controversy over what legal interests are protected and the determination of objective behavior in this crime.There are also differences in the characterization of illegal use of information networks,resulting in inconsistent application of charges in similar cases.Firstly,it is necessary to understand the specific content of the legal benefits of this crime,fully utilize its internal interpretation function,and guide the application of this crime.The legal interests protected by this crime are double-layer legal interests,including the information network security management order at the blocking layer and the protection legal interests of specific crimes at the back layer.The two belong to the relationship between means and ends.Only by strengthening the protection of the legal interests of the blocking layer network order can specific citizens’ personal property,security,and other legal interests at the back layer be protected.The behavior causes real harm to the order and legal interests of the barrier layer,and poses abstract risks to the legal interests of the underlying layer.Secondly,when determining the objective behavior of this crime,the criteria for determining "illegal crime" should be refined based on the basic provisions that exist in all three types of behavior.The form should be a crime that can be committed through information networks,an illegal behavior that belongs to the type of behavior specified in the specific rules,and can infringe or threaten the relevant criminal legal interests,In essence,it is necessary to determine whether its illegal use of information networks seriously infringes on the dual legal interests of this crime;And define the scope of prohibited and controlled items based on the nature of illegal and criminal activities.The act of simply setting up a website or group is a preparatory act for this crime and does not have criminal punishment.The implementation of this behavior mode is determined based on the urgent infringement of legal interests.The behavior of publishing information should be defined using similar interpretation rules under the guidance of purpose interpretation.The behavior of publishing information for others to commit illegal crimes should belong to the type of behavior regulated by this crime.Finally,in the determination of the number of crimes related to the illegal use of information networks and related crimes,there is only a coincidence between the act of this crime and related crimes.Imaginary coincidence can be established between the act of preparation and execution of related crimes,and it can be a coincidence with the crime of aiding information network criminal activities.If a subsequent criminal act is committed after the commission of this crime,an implicated offender is established when there is an implicated relationship between the two.In addition,there is also a situation where multiple crimes are punished together.