网络有害信息的刑法规制
发布时间：2018-07-28 16:16
【摘要】：随着信息网络的高速发展,网络有害信息对民众利益的侵害也越来越普遍。辩证唯物主义观告诉我们,事物都有两面性,我们在享受信息网络带来的便利的同时,也要防止有害信息给社会造成危害后果。网络有害信息是指在互联网上传播,以文字、图像、声音、视频等形式表现的,其内容或者传播行为足以对国家利益、社会公共利益或者个人合法利益造成损害或威胁的信息。网络有害信息的表现形式多样,依照利益主体的不同可分为侵害国家利益的网络有害信息、侵害社会利益的网络有害信息、侵害个人利益的网络有害信息。网络有害信息具有身份的隐匿性、受众的广泛性、传播速度的快捷性、传播方式的多样性等特征,与有害数据、不良信息、虚假信息等具有不同的内涵与外延。网络有害信息需要法律予以规制,不需要法律介入的网络信息不是法律意义上的有害信息。网络有害信息适用刑法规制,是因为网络有害信息对刑法所保护的法益造成了侵害。适用刑法规制网络有害信息,需要遵循严重的社会危害性、刑法的谦抑性和言论自由均衡等基本原则,以及严重的有害性这一具体标准。并非所有网络有害信息皆应当纳入刑法的规制范围,哪些网络有害信息应当纳入刑法规制的范围,我们需要遵循网络有害信息刑法规制的基本原则和具体标准,综合判断。具体而言,可以纳入规制范围的应当包括,侵害国家利益的煽动颠覆类信息、泄密类信息以及诋毁国家名誉的信息,侵害社会利益的虚假信息、寻衅滋事信息、淫秽色情信息、传授犯罪方法信息、破坏市场秩序信息、危害公序良俗的信息等,侵害个人利益的损害名誉类信息、侵犯知识产权类信息。当前我国对于网络有害信息的刑法规制已经做出了努力,诸多网络有害信息犯罪纳入到既有罪名或者新增罪名之中,对于打击网络有害信息犯罪,维护社会稳定和人们利益具有重要意义。但是问题依然存在,比如遵循当前立法模式所导致的网络有害信息刑法规制范围过窄问题,对网络虚假信息立法缺乏预见性而导致的规制不彻底问题等。针对这些问题,我们需要坚守刑法基本原则,在此基础之上依据社会的发展需要,完善刑法的规制手段。立法上,更新刑法理念,实行适度犯罪化；完善规制手段,扩大刑法保护范围；增设普通条款,预留保护空间。司法上,严守罪刑法定,谨慎动用刑罚；正确解释法律,防止解释越权；均衡言论自由,彰显人权保障。通过两个方面的共同发力,完善网络有害信息刑法规制的制度体系,规范网络有害信息犯罪的定罪量刑,最终实现网络信息领域的司法正义。
[Abstract]:With the rapid development of the information network, the harmful information of the network is becoming more and more common to the interests of the people. The dialectical materialism view tells us that all things have two sides, while we enjoy the convenience brought about by the information network, we should also prevent the harmful information from causing danger to the society. In the form of words, images, sounds, video, and other forms, the content or communication behavior is sufficient to cause damage or threat to the interests of the state, the public interest or the legitimate interests of the individual. The various forms of the network harmful information can be divided into harmful information on the network which infringe on the interests of the state according to the differences of the interests of the main body. The network harmful information of the social interests, the network harmful information that infringe on the personal interests. The network harmful information has the identity concealment, the popularity of the audience, the speed of communication, the diversity of the mode of communication and so on. It has different connotation and extension with harmful data, bad information, false information and so on. The law is regulated, the network information that does not need legal intervention is not the harmful information in the legal sense. The network harmful information is applicable to the criminal law regulation, because the network harmful information has caused the infringement to the legal interests protected by the criminal law. The application of criminal law to regulate the harmful information of the network should follow the strict social harmfulness, the modesty and speech of the criminal law The basic principle of free equilibrium, and the specific standard of serious harm. Not all the harmful information of the network should be included in the scope of the regulation of criminal law. Which network harmful information should be included in the scope of criminal law regulation. We need to follow the basic principles and specific standards of the criminal law regulation of harmful information on the network, and make a comprehensive judgment. It should be included in the scope of the regulation, which should include instigation of subversive information, disclosure of information as well as information on the reputation of the state, false information that infringes social interests, provocative information, pornographic information, imparting information on crime methods, destruction of market order information, harm of public order and good customs, and so on. The interests of people damage honorary information and infringe on intellectual property information. At present, our country has made efforts to regulate the criminal law of network harmful information. Many network harmful information crimes are included in both crimes and new charges, which are of great significance for the fight against network harmful information crime and the maintenance of social stability and people's interests. But the problems still exist, such as the narrow scope of criminal law regulation of network harmful information, which is caused by the current legislative pattern, and the lack of foresight of the network false information legislation. In view of these problems, we need to stick to the basic principles of criminal law and based on the needs of social development, To improve the means of regulation of criminal law, to renew the concept of criminal law, to carry out a moderate criminalization, to improve the means of regulation, to expand the scope of the protection of criminal law, to add common provisions and to reserve the space for protection. In judicial, strictly abide by the law of crime and punishment, to explain the law correctly, to prevent the interpretation of overcrossing power, to balance the freedom of speech, and to highlight the protection of human rights. The joint force of the two aspects will improve the system of the criminal law regulation of harmful information on the network, standardize the conviction and sentencing of the network harmful information crime, and finally realize the judicial justice in the field of network information.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D924.3
，
本文编号：2150852
[Abstract]:With the rapid development of the information network, the harmful information of the network is becoming more and more common to the interests of the people. The dialectical materialism view tells us that all things have two sides, while we enjoy the convenience brought about by the information network, we should also prevent the harmful information from causing danger to the society. In the form of words, images, sounds, video, and other forms, the content or communication behavior is sufficient to cause damage or threat to the interests of the state, the public interest or the legitimate interests of the individual. The various forms of the network harmful information can be divided into harmful information on the network which infringe on the interests of the state according to the differences of the interests of the main body. The network harmful information of the social interests, the network harmful information that infringe on the personal interests. The network harmful information has the identity concealment, the popularity of the audience, the speed of communication, the diversity of the mode of communication and so on. It has different connotation and extension with harmful data, bad information, false information and so on. The law is regulated, the network information that does not need legal intervention is not the harmful information in the legal sense. The network harmful information is applicable to the criminal law regulation, because the network harmful information has caused the infringement to the legal interests protected by the criminal law. The application of criminal law to regulate the harmful information of the network should follow the strict social harmfulness, the modesty and speech of the criminal law The basic principle of free equilibrium, and the specific standard of serious harm. Not all the harmful information of the network should be included in the scope of the regulation of criminal law. Which network harmful information should be included in the scope of criminal law regulation. We need to follow the basic principles and specific standards of the criminal law regulation of harmful information on the network, and make a comprehensive judgment. It should be included in the scope of the regulation, which should include instigation of subversive information, disclosure of information as well as information on the reputation of the state, false information that infringes social interests, provocative information, pornographic information, imparting information on crime methods, destruction of market order information, harm of public order and good customs, and so on. The interests of people damage honorary information and infringe on intellectual property information. At present, our country has made efforts to regulate the criminal law of network harmful information. Many network harmful information crimes are included in both crimes and new charges, which are of great significance for the fight against network harmful information crime and the maintenance of social stability and people's interests. But the problems still exist, such as the narrow scope of criminal law regulation of network harmful information, which is caused by the current legislative pattern, and the lack of foresight of the network false information legislation. In view of these problems, we need to stick to the basic principles of criminal law and based on the needs of social development, To improve the means of regulation of criminal law, to renew the concept of criminal law, to carry out a moderate criminalization, to improve the means of regulation, to expand the scope of the protection of criminal law, to add common provisions and to reserve the space for protection. In judicial, strictly abide by the law of crime and punishment, to explain the law correctly, to prevent the interpretation of overcrossing power, to balance the freedom of speech, and to highlight the protection of human rights. The joint force of the two aspects will improve the system of the criminal law regulation of harmful information on the network, standardize the conviction and sentencing of the network harmful information crime, and finally realize the judicial justice in the field of network information.
【学位授予单位】：湖南大学
【学位级别】：硕士
【学位授予年份】：2016
【分类号】：D924.3
，
本文编号：2150852
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