| With the development of information networks and in order to deal with new forms of cybercrime,on 9 September 2013,the Supreme People’s Court and the Supreme People’s Procuratorate jointly issued the Interpretation of Certain Questions on the Applicable Law in Criminal Cases such as the Use of Information Networks for Defamation(hereinafter referred to as "the Interpretation "),which mainly addresses the use of network platforms in the information age to fabricate and disseminate false information,and to criminalize and punish the crime of provoking trouble or insulting or slandering.This paper mainly discusses the crime of network type provoking trouble.In 2013,the network-based crime of provoking trouble was established in the form of judicial interpretation.The content of the dispute mainly focuses on the identification of cyberspace attributes and the understanding of public order,the identification of false information and the necessity of criminal motivation,knowledge and subjective malice.Through combing the views of experts and scholars,analyzing the hot cases and integrating the self-view,this paper analyzes the issues of various controversial focal points of the network type crime of provoking trouble,in order to be helpful to the judicial determination of the network type crime of provoking trouble in practice.The first part of this paper mainly explains the reason and significance of the topic,and details the domestic research status and foreign research status,research ideas and research methods.The second part of this paper defines the concept of network-type crime of provoking trouble,mainly from two aspects,namely,the connotation and characteristics of network-type crime of provoking trouble,and divides the network-type crime of provoking trouble into two categories according to its characteristics.The third part of this paper analyzes the current situation of the network-type crime of provoking trouble.Firstly,the case is introduced,the typical cases "Mao Chunhua case" and "Bloomberg case" are selected,and then the current situation of judicial application is analyzed according to the problems reflected in the case.The fourth part of this paper discusses the dilemma and the reasons of the existing problems in the judicial cognizance of the crime of network type provoking trouble.Through the analysis,the author puts forward the dilemma of the identification of crime and non-crime,this crime and that crime in judicial practice.There are three main reasons for the problems,one is that the nature of "cyberspace" is not clear;the other is that the standard of "causing serious chaos of public order" is unreasonable;The third is that the identification of false information is not clear.The fifth part of this paper mainly puts forward the perfect countermeasure according to the reason,starting with the identification of the objective elements of the network type crime of provoking and causing trouble,and analyzes and demonstrates the concrete identification and logical relationship of the objective elements in detail.It mainly includes the identification of the traditional place of provocation and trouble,the identification of the attribute of the cyberspace place and the demonstration that the cyberspace belongs to the public place,and the demonstration of the attribute of the public order from the relationship between the public order and the public order.Then,starting from the subjective view of network-type crime,the concept of false information and rumors and the viewpoint of hooligan motivation are distinguished in detail. |
