网络诈骗犯罪的预防
发布时间：2018-08-11 17:07
【摘要】：网络诈骗犯罪不是刑法规定的某种具体罪名,而是从刑法理论上对利用网络实施的各种诈骗犯罪的总称。与传统诈骗犯罪相比,它具有其独有的特点,即:犯罪空间的虚拟性,犯罪行为的隐蔽性和连续性,犯罪手段的专业化,犯罪成本的低廉性,危害对象的广泛性,以及犯罪主体的低龄化。依据侵犯的同类客体的不同,网络诈骗犯罪可以分为普通网络诈骗犯罪和特殊网络诈骗犯罪两大基本类型。普通网络诈骗犯罪侵犯客体主要是公私财物所有权。特殊网络诈骗犯罪在侵犯公私财产所有权的同时,侵犯的主要客体是我国市场经济秩序,一般而言,后者的社会危害性要大于前者。普通网络诈骗犯罪主体限于自然人,特殊网络诈骗犯罪主体包括自然人和单位。 我国网络诈骗犯罪原因是多方面的。在立法方面,目前我国有关网络诈骗的立法比较滞后,现有刑法规定中直接涉及网络诈骗犯罪的仅有两条。在司法方面,主要问题是案件管辖存在冲突、侦查打击和国际司法协助滞后。在安全制度方面,主要是政府监管不到位,网络服务行业自律不力,有关安全防范制度和措施不落实。在社会层面,我国正处于社会转型时期,价值观念混乱,网络道德监督失控,部分人追逐财富铤而走险。同时,广大网民防欺诈意识淡薄,也在一定程度上助长了网络诈骗犯罪分子的气焰。 预防网络诈骗犯罪,需要综合运用法律、行政、教育等多方面的措施。首先,应加大立法力度,解决网络诈骗法律适用问题。具体建议如下:一是将网络虚拟财产视为电子数据,对骗取网络虚拟财产犯罪行为按照《刑法修正案(七)》第9条规定定罪量刑。二是修改《刑事诉讼法》,明确电子证据法律地位,并出台相关配套法律文件,对电子证据收集主体、收集原则、审查规则等作出规定,以解决网络诈骗犯罪侦查和诉讼中的证据问题。三是修改刑法有关法条,将“多次诈骗”作为诈骗罪客观要件加以规定,有效打击多次小额网络诈骗。其次,应以属地管辖为基础,对犯罪地进行合理解释,形成统一认定标准,避免和减少案件管辖冲突,整合司法资源,严格依法执法,有效遏制网络诈骗犯罪上升势头。第三,政府应加大网络监管力度,引导、督促网络单位落实网络安全制度,堵塞漏洞,消除安全隐患,压缩网络诈骗犯罪生存空间。最后,要加强网络道德建设,广泛开展网络安全和法制教育,提高全社会特别是广大网民防欺诈意识和法制观念,铲除适宜网络诈骗犯罪生存的社会土壤。
[Abstract]:The crime of network fraud is not a specific crime stipulated in criminal law, but a general term for various crime of fraud committed by means of network in theory of criminal law. Compared with the traditional fraud crime, it has its unique characteristics, that is, the fictitious nature of the crime space, the concealment and continuity of the criminal behavior, the specialization of the crime means, the low cost of the crime, and the universality of the harmful object. And the younger age of the criminal subject. According to the same object, the crime of network fraud can be divided into two basic types: ordinary crime of network fraud and special crime of network fraud. The main object of common network fraud crime is public and private property ownership. The main object of the crime of special network fraud is the order of market economy while infringing the ownership of public and private property. Generally speaking, the social harm of the latter is greater than that of the former. The main body of ordinary network fraud crime is limited to natural person, and the special network fraud crime subject includes natural person and unit. There are many reasons for the crime of network fraud in China. In the aspect of legislation, at present, the legislation of network fraud in our country lags behind, and only two articles of the existing criminal law are directly related to the crime of network fraud. In the judicial aspect, the main problem is the conflict of case jurisdiction, the lag of investigation strike and international judicial assistance. In the aspect of safety system, the government supervision is not in place, the self-discipline of network service industry is weak, and the safety prevention system and measures are not carried out. At the social level, our country is in the period of social transformation, the value concept is confused, the network moral supervision is out of control, some people chase after wealth desperate. At the same time, the vast number of Internet users weak awareness of fraud, to a certain extent, also contributed to the arrogance of network fraud criminals. To prevent the crime of network fraud, it is necessary to make comprehensive use of law, administration, education and other measures. First of all, we should strengthen legislation to solve the problem of legal application of network fraud. The specific suggestions are as follows: first, the virtual property of the network is regarded as electronic data, and the crime of obtaining the virtual property of the network is convicted and sentenced according to Article 9 of the Criminal Law Amendment (7). Second, to amend the Criminal procedure Law, to clarify the legal status of electronic evidence, and to issue relevant supporting legal documents to provide for the subject, principles, and rules of examination of electronic evidence collection. In order to solve the problem of evidence in the investigation and litigation of network fraud crime. The third is to amend the relevant articles of the criminal law, to make "multiple fraud" an objective element of the crime of fraud, and to effectively crack down on many small amounts of network fraud. Secondly, on the basis of territorial jurisdiction, we should rationally explain the criminal territory, form a unified standard of cognizance, avoid and reduce the conflict of jurisdiction over cases, integrate judicial resources, strictly enforce the law according to law, and effectively curb the rising trend of the crime of network fraud. Thirdly, the government should strengthen the network supervision, guide and urge the network units to implement the network security system, plug the loopholes, eliminate the hidden dangers of security, and compress the living space of the crime of network fraud. Finally, it is necessary to strengthen the construction of network morality, widely carry out network security and legal education, improve the whole society, especially the vast number of Internet users' awareness of fraud prevention and legal concepts, and eradicate the social soil suitable for the survival of network fraud crime.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D917.6
本文编号：2177662
[Abstract]:The crime of network fraud is not a specific crime stipulated in criminal law, but a general term for various crime of fraud committed by means of network in theory of criminal law. Compared with the traditional fraud crime, it has its unique characteristics, that is, the fictitious nature of the crime space, the concealment and continuity of the criminal behavior, the specialization of the crime means, the low cost of the crime, and the universality of the harmful object. And the younger age of the criminal subject. According to the same object, the crime of network fraud can be divided into two basic types: ordinary crime of network fraud and special crime of network fraud. The main object of common network fraud crime is public and private property ownership. The main object of the crime of special network fraud is the order of market economy while infringing the ownership of public and private property. Generally speaking, the social harm of the latter is greater than that of the former. The main body of ordinary network fraud crime is limited to natural person, and the special network fraud crime subject includes natural person and unit. There are many reasons for the crime of network fraud in China. In the aspect of legislation, at present, the legislation of network fraud in our country lags behind, and only two articles of the existing criminal law are directly related to the crime of network fraud. In the judicial aspect, the main problem is the conflict of case jurisdiction, the lag of investigation strike and international judicial assistance. In the aspect of safety system, the government supervision is not in place, the self-discipline of network service industry is weak, and the safety prevention system and measures are not carried out. At the social level, our country is in the period of social transformation, the value concept is confused, the network moral supervision is out of control, some people chase after wealth desperate. At the same time, the vast number of Internet users weak awareness of fraud, to a certain extent, also contributed to the arrogance of network fraud criminals. To prevent the crime of network fraud, it is necessary to make comprehensive use of law, administration, education and other measures. First of all, we should strengthen legislation to solve the problem of legal application of network fraud. The specific suggestions are as follows: first, the virtual property of the network is regarded as electronic data, and the crime of obtaining the virtual property of the network is convicted and sentenced according to Article 9 of the Criminal Law Amendment (7). Second, to amend the Criminal procedure Law, to clarify the legal status of electronic evidence, and to issue relevant supporting legal documents to provide for the subject, principles, and rules of examination of electronic evidence collection. In order to solve the problem of evidence in the investigation and litigation of network fraud crime. The third is to amend the relevant articles of the criminal law, to make "multiple fraud" an objective element of the crime of fraud, and to effectively crack down on many small amounts of network fraud. Secondly, on the basis of territorial jurisdiction, we should rationally explain the criminal territory, form a unified standard of cognizance, avoid and reduce the conflict of jurisdiction over cases, integrate judicial resources, strictly enforce the law according to law, and effectively curb the rising trend of the crime of network fraud. Thirdly, the government should strengthen the network supervision, guide and urge the network units to implement the network security system, plug the loopholes, eliminate the hidden dangers of security, and compress the living space of the crime of network fraud. Finally, it is necessary to strengthen the construction of network morality, widely carry out network security and legal education, improve the whole society, especially the vast number of Internet users' awareness of fraud prevention and legal concepts, and eradicate the social soil suitable for the survival of network fraud crime.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2009
【分类号】：D917.6
【引证文献】
相关硕士学位论文 前1条
1 徐金水;网络诈骗犯罪问题研究[D];华中师范大学;2011年
，本文编号：2177662
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