The Interpretation of the Doctrine of Binary Form of Information Network Crime

Chen Wei; Xiong Bo

doi:doi:10.16538/j.cnki.jsufe.2018.02.009

Summary

In the network information era, it is necessary to set partial pre-prevention behavior of the crime of illegal use of information network to respond to virtuality, technical transcendence and stakeholder-based order of network risk society. Crime of illegal use of information network, should not be determined as a ready behavior of principal offender as a whole, and from a perspective of precise language norms of criminal law, there exists a dual qualitative standard in behavioral form of information network crime, namely ‘preparation act of principal offender’ and ‘pure perpetrating act’. The practice of ‘pure perpetrating act’ as a criminal form in crime of illegal use of information network considers the technological rules of network risk society, and applies technological changes in the network information age to coping direction, content structure and discourse cohesion of network criminal law system. The technological rules of cyber criminal law include the proportion principle of technical specification setting, the allowable risk principle in technical specifications, and the typed principle of technical specification arrangement. In view of this, the virtual nature of cyberspace is regarded as the reality of technological changes and its dual form construction remains in double space. The transcendence of network technology is seen as the advance trend of technological changes, and its dual form construction has the prospectiveness of regulation. The stakeholder of network order is regarded as the hazard evaluation of technological changes, and its dual form construction corresponds to pluralistic behavior prevention. Complying with the doctrine interpretation of normalized practice of Article 22 of the ‘criminal law’, ‘in order to crime’ should place emphasis on the correspondence between criminal purpose and preparatory act, ‘the preparation of the instruments’ must be limited to direct tool preparatory behavior, and ‘creation of conditions’ do not have specific patterns of preparatory using behavior. Under the basic guidance of the dualism of behavioral form of information network crime, a ‘website’ set up should include space types under ‘three-network integration’; the issued ‘information’ evaluation should be interpreted in terms of ‘time, nature and type’. Firstly, based on the time-dimension analysis of information release, the distribution is restricted to illegal information when the behavior is restricted. Secondly, in view of the substantive interpretation of the multiple types of publication, disguised information release act also provides a punishment basis. Finally, as for the nature judgment of the published information, it is necessary to avoid confusion with information types of release preparation act. While legislation trend towards preparation act of principal offender suffers a lot of criticism by the theoretical circle, crime of illegal use of information network as a type of network tool crime shall timely reverse the determination of discourse form and fact structure concerning an expansion of its transformation from preparation act to pure perpetrating act. In order to overcome uncertain infringement of legal interests resulting from the potential factors of network risk society, the establishment of a dual qualitative standard in behavioral form of information network crime, namely ‘preparation act of principal offender’ and ‘pure perpetrating act’, has reality feasibility, norm dredging and theoretical extension.