网络刷单行为的刑法规制研究
发布时间：2019-01-04 11:09
【摘要】：随着"职业刷客"以及刷单产业链的出现,部分网络刷单行为不仅已严重扰乱网络电商正常的运营秩序,也蕴含着严重的法益侵害性,有必要诉诸刑法手段予以调整与规制。其中,声誉型刷单行为可能触犯虚假广告罪、敲诈勒索罪和损害商业信誉、商品声誉罪等罪名。财产型刷单中,善意注册平台账号者的刷单行为可能构成民事违约,一般不能作为犯罪来处理;恶意注册平台账号者的刷单行为一般可构成诈骗罪,但若刷单人原系善意注册账号者,后来在经营或者运营中实施刷单行为,骗取网络平台财产的,一般应认定为合同诈骗罪。刷单犯罪行为中还有诸多共犯与罪数形态问题值得关注。当然,为了有效应对网络环境下刷单行为引发的风险,刑法的规制仍需其他部门法的配合,需要从社会全景控制的视角出发,慎重发挥刑法后盾法之作用。
[Abstract]:With the appearance of "professional brushing" and brushing industry chain, some network brushing behaviors not only seriously disturb the normal operation order of network e-commerce, but also contain serious infringement of legal interests, so it is necessary to resort to criminal law to adjust and regulate it. Among them, reputational brushing may violate the crime of false advertisement, extortion, damage to commercial reputation, commodity reputation and so on. In the property brushing order, the behavior of the bona fide registered platform account holder may constitute a civil breach of contract, and generally cannot be treated as a crime; The behavior of the malicious registration platform account number person can constitute the crime of fraud generally, but if brush a single person originally is the person of good faith registered account, later in management or operation carry out the act of brushing a single order, obtain the property of the network platform generally, should be regarded as the crime of contract fraud generally. There are many problems of accomplice and number of crimes in the crime of brushing orders. Of course, in order to effectively deal with the risks caused by brushing orders under the network environment, the regulation of criminal law still needs the cooperation of other branches of law, and needs to play the role of backing law carefully from the perspective of social panoramic control.
【作者单位】： 北京师范大学刑事法律科学研究院;
【分类号】：D924.3
，
本文编号：2400206
[Abstract]:With the appearance of "professional brushing" and brushing industry chain, some network brushing behaviors not only seriously disturb the normal operation order of network e-commerce, but also contain serious infringement of legal interests, so it is necessary to resort to criminal law to adjust and regulate it. Among them, reputational brushing may violate the crime of false advertisement, extortion, damage to commercial reputation, commodity reputation and so on. In the property brushing order, the behavior of the bona fide registered platform account holder may constitute a civil breach of contract, and generally cannot be treated as a crime; The behavior of the malicious registration platform account number person can constitute the crime of fraud generally, but if brush a single person originally is the person of good faith registered account, later in management or operation carry out the act of brushing a single order, obtain the property of the network platform generally, should be regarded as the crime of contract fraud generally. There are many problems of accomplice and number of crimes in the crime of brushing orders. Of course, in order to effectively deal with the risks caused by brushing orders under the network environment, the regulation of criminal law still needs the cooperation of other branches of law, and needs to play the role of backing law carefully from the perspective of social panoramic control.
【作者单位】： 北京师范大学刑事法律科学研究院;
【分类号】：D924.3
，
本文编号：2400206
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