| Living in the Internet age of information flooding,while correct information can bring knowledge and information,there are also false information that lead people’s judgment wrongly,causing great damage to the social public order.From the perspective of legislative process,China’s criminal punishment for false information is increasing.The regulation of false information infringing on public legal interests begins with the addition of the crime of fabricating and intentionally spreading false terrorist information in the amendment three of criminal law,then the controversial crime of provocation,and until the Criminal Law Amendment(IX)added the crime of making up and intentionally spreading false information.The process is tortuous,but it is gradually covering and improving.This paper selects the most typical crime of fabricating and deliberately spreading false information,starting from the causes and essential characteristics of false dangerous situation,epidemic situation,disaster situation and police situation,and combining with the basic theory of criminal law,makes a systematic analysis of the elements of the crime under this crime,and makes a reasonable balance between protecting human rights and combating crime,so as to achieve a balance between crime and punishment.This paper is divided into three chapters.The first chapter of this paper analyzes the causes of false information from the government,the public and the media,and makes clear the serious social harm brought by such false information.Secondly,the characteristics of the false danger epidemic disaster warning situation are summarized.It can be reasonably expanded in the scope of information,but it still needs to consider whether the relevant information can directly lead to the occurrence of harmful results,and uphold the modesty of criminal law.Finally,the relationship between the crime of intentionally spreading false information and related crimes is analyzed.This paper mainly compares the differences between four kinds of false information and false terrorist information,identifies the attribution of "major epidemic situation" and "major disaster situation",and discusses the effectiveness of the crime of network provocation after the establishment of the crime of fabricating and deliberately spreading false information questions.The second chapter of this paper analyzes some problems in the identification of the elements of the crime.First,in terms of objective behavior,"fabricating" is aimed at specific or non-specific objects,and of course includes the content of "spreading".Simply fabricating and keeping confidential false information does not constitute a crime due to lack of media."Spreading" includes the transmission of false information to a specific person or a majority of people,as well as the transmission of false information to a specific person,but the latter situation should be differentiated according to the identity of the fabricator and the pure communicator.Second,in terms of harmful consequences,social order is equivalent to public order,which is the upper concept of order in public places and cyberspace.As a continuation of the real space,cyberspace,which causes serious disorder in cyberspace,must be reflected in the real physical space in order to be convicted.In the determination of "serious" degree,we can refer to the standard of "seriously disturbing the social order" in the judicial interpretation of false terrorist information,and combine with the special period,location,economic losses and other objective factors.Thirdly,subjectively,the "intention" of either the fabricator or the disseminator includes both direct intention and indirect intention.The "intention" in the act of "intentional dissemination" has the function of limiting the subjective guilt of the pure disseminator."Knowing" should be limited to the situation of "really knowing",not including the state of "should know",and because "malicious" is difficult to define,it should not be taken as a subjective criterion.The third chapter discusses whether this crime should be expanded to meet the actual needs.This paper introduces how Japan,South Korea and Malaysia regulate the false information endangering public order.It is argued that the expansion of the criminalization of false information does not conflict with the citizens’ right to freedom of speech regulated by the constitution,and the criminal law has a legitimate basis for the regulation of false information.Finally,it demonstrates the necessity and rationality of expanding the content of unit crime,transmission channels and false information. |
