Research On The Judicial Identification Of The Crime Of Provoking Disturbances On The Interne

In 2013,the two high courts formally issued an "Interpretation on a number of issues related to the application of the law in cases of defamation offences committed over information networks"("Network Interpretation"),which established the criteria for the determination of network-based provocation and nuisance crimes in the form of judicial interpretation and provided an important reference basis for its determination.The introduction of the Judicial Interpretation has triggered a lot of debates,mainly focusing on whether there is consistency in the recognition criteria and composition of network-based provocation and provocation crimes and whether the change in wording and phrasing will affect its practical application,even to the extent of whether the citizens’ right to freedom of expression is infringed.This paper analyzes 200 judgments and seeks to optimize the path of network-based provocation.There are four chapters in the paper,and the main contents are as follows:The first chapter firstly describes the concept of network-based provocation and analyzes the difference between it and traditional provocation and provocation crimes,and obtains that the application of provocation and provocation in cyberspace is characterized by concealment,various ways of behavior and special places of occurrence,and then divides the network-based provocation and provocation crimes into abusive,intimidating and false information types,and further elaborates the provocation and provocation crimes from two different types respectively.The second chapter compares the judicial practice of network-type provocation and nuisance crimes,and finds that the number of cases is higher than the number of abusive and intimidating cases,and the number of cases shows a trend of rising and then falling.In terms of subjective and objective criteria,the subjective motive is that the perpetrator is more dissatisfied with the public authority than the traditional subjective motive of making trouble;in terms of the determination of the manner of behavior,the scope of the fabricated and disseminated false information is wide;in terms of the consequences of behavior,there are multiple criteria for the determination of serious public disorder and aggravating circumstances.There are competing determinations in the cases.The analysis of the cases in Chapter 3 outlines the current state of judicial interpretation,the lack of accurate determination of false information and the vague terminology of the conviction criteria,which makes the determination of the elements of the composition more arbitrary.In judicial practice,the arbitrariness of the determination and the lack of uniformity in the recognition of legal benefits also lead to the problem of unclear boundaries between the application of this crime and the other crime.Chapter 4 makes suggestions on the judicial application of network-based provocation crimes in view of the problems that arise in practice.First,the definition of false information as unfounded and untrue news should be clarified in judicial decisions,and its scope needs to be limited in the determination;second,when refining the criteria for determination,it should be clear that cyberspace belongs to public places and the legal interests protected by the crime are the order of public places,more specifically the freedom and reputation under public activities and the safety and freedom to engage in activities;finally,with the legal interests as a guide,it should be clear that The determination of subjective knowledge should include explicit knowledge and presumed knowledge,and the determination of causing serious disorder in public order and aggravating circumstances cannot be based on the number of clicks alone,but needs to be determined with reference to other criteria such as the number of times,objects,and damage to the real order.