| In recent years, rumor, tale events happen very often in the information network, "Criminal law amendment(9)" deliberately came up "fabrication and deliberate dissemination of false information" to regulate it. It is of great significance of this crime in a timely manner, But the standard of the constitutive requirements of "social order", "false information" and "information networks and other media", "fabrication,dissemination" and other elements of is not clear in the judicial practice, may cause its improper expansion. So, to accurately judicial cognizance the crime of fabricating and spreading false information, in theory, help to improve the false information crime system construction; from the practice point of view, contribute to the judicial personnel mastering standard criterions for the conviction in similar cases, also conducive to effectively protect citizens’ network freedom of speech.In this paper, a total of more than thirty thousand words, is divided into five parts, mainly from the summary of fabricating, deliberately spread false information crime, the judicial cognizance of "social order", the judicial cognizance of "false danger, plagues, disasters", the judicial cognizance of "information networks or other media", the judicial cognizance of "fabrication,dissemination " and so on are discussed.The first part Summary of the crime of fabrication and deliberate dissemination of false information. This part mainly introduces the historical evolution of fabricating, deliberately spread false information crime, the legislative background and the establishment of this crime. This crime can be traced back to the regulation of false information to the kind of crime in 1997 "Criminal Law", launched the establishment of fabrication and deliberate dissemination of false terrorist information in "criminal law amendment(3)", after "network stir-up-trouble crime" is set up in relevant judicial interpretations issued in 2013, the time is right. Legislative background of this crime is that the Internet rumors, increasingly, and has set up a serious endanger social order, by setting up this crime is helpful to perfect the system of the false information crime, fit more to the principle of legality, also helps to effectively regulate Internet rumors, tale, but have defects such as constitutive elements is not clear, subject to carry on the accurate interpretation and recognition.The second part The judicial cognizance of "social order". Social order and social public order as the object of the crime, has the questions of the dispute can cover the psychological order, network order and seriously disrupt social order and the extent of the serious consequences are not clear in the practice. Psychological panic is too abstract and difficult to grasp, easy to cause forensics difficulties, should not be regarded as the social order; network order of the importance of legal interest has compared with the realistic social order is not equal, should not be regarded as social order; the degree of seriously disrupt social order should be comprehensive recognized combined with the reading quantity and quantity of the forward in the form and the nature of the affected sites, the importance of the social activities, the number of affected places, time, scope, etc; the standard of "serious consequences" should be comprehensive recognized combined with the number of casualties, degree, the size of the economic loss, the influence of the national image and the political image, etc.The third part The judicial cognizance of "false danger, plagues, disasters". False danger, plagues, disasters, alert as the object of this crime, has the problems of four types of information is not clear, easily confused with terrorist information, creating disturbances, as well as the standard of false information is not clear, easily confused with expression of emotional speech, false degree is difficult to determine. "Danger, plagues, disasters" shall include the false information such as sudden outbreak of infectious diseases, hijacked aircraft threats, major disasters, major outbreaks and so on, should not include the false information such as bomb threat, biochemical threats, radiation threats, image distortion of industry or disrupt the moral order and so on; the falsity of false information should not include the expression of emotional speech, its degree of false should judge from the degree of match content, realistic possibility, induced, concreteness, source of legitimacy.The fourth part The judicial cognizance of "information networks or other media". In practice "information network" and "other media" that is too abstract and generalization, publicity should be as judging standards. For closed timely communication software and closed information publishing platform, cannot be regarded as information networks, half open and open information release platform should be identified.Leaflets, small advertisement and publicity radio, speakers have publicity, shall be deemed to be the "other media", telephone, SMS should should be depending on the circumstances, one-on-one call, send text messages have no publicity, cannot be identified as "other media"; a mass text messages and random calls for many times shall be deemed to be the "other media".The fifth part The judicial cognizance of "fabrication,dissemination" behavior. Inpractice, if the behavior of the simply fabricated, let others spread after make up should be considered as "fabrication,dissemination" behavior, there is controversy. While the propagation behavior is difficult to define in the information network.It should be clear that simply fabricated behavior does not constitute a crime, fabricate and let others spread can be explained as "fabrication+dissemination". Spread to the person should not be regarded as "the dissemination" mode, spread to many people should be considered carefully depending on the circumstances.In short, in the judicial practice, the application of the crime of fabricating, spreading false information should adhere to the restrictive principle of criminal law, accurately determine its constitutive elements to prevent improper expansion of this crime. |
