The song Xinjiu professor "a more scientific and reasonable interpretation of criminal law" commentary

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Tong Zongjin   2013-09-13

 China University of Political Science and Law in 2004 to teach, is now an associate professor. The doctor of law ("Peking University Law Review" is the founding editor of the Harvard), master of law, Columbia University law school, visiting scholar America.

Professor Qu Xinjiu is the criminal law scholars of his recent achievements, "the Supreme People's court, the Supreme People's Procuratorate on handling the information network implementation slander and defence of some problems in criminal cases the law applicable to the interpretation of""Interpretation of a more scientific and reasonable criminal law"Focus on involving the crime part of the explanation, more accurate pointed out the core problem of both sides of the debate, to give people a lot of inspiration. However, the three point defense Professor Qu for that there are considerable problems in my opinion, this post the following attempts to turn a simple analysis.

1, in the first defense and points out that the information society background, especially in article 367th of the criminal law about "obscenity" provisions and the relevant interpretation as an example to analogy about "public place" the explanation is reasonable. However, in my opinion, this analogy is a problem.

First of all, in the expanded interpretation of "obscene goods" to include information on the Internet "video files, audio files, electronic publications, pictures, articles, short message" obscene information in this process, the relevant provisions for the crimes and the law has not changed, the key of criminal law to punish is "making replication publishing selling communication" "obscene" attribute of things, what is its carrier, the of course not exhaustive list. From the theory of ordinary, such as it is difficult to say, pornographic books is "obscene materials", and obscene books are not "obscene articles". In this case, the court made the relevant judicial interpretations are interpreted, and did not violate the original intention of legislation.

Secondly, in trouble, the "public place" interpreted to include "information network", this interpretation process means that the substantial change of the crime and law. Crucially, the crime punishment is in public places to stir up trouble "behavior". Because it is the "behavior", so it needs to happen in a real physical space, but also can therefore cause social disorder. But the information on the Internet "trouble", is a kind of speech, is a kind of information network for the media comments. Although the countries all over the world, including America First Amendment to the constitution theory in the distinction between "words" and "behavior" is often controversial, such as the burning of the flag flag burning case is regarded as a "symbolic speech". However, information expression of information in the network, such as speech on the Internet, mobile phone information expression, has been mainly as "speech". The speech of the regulation is not, but not by a previously only the provisions of the criminal law explanation for the "behavior" and to, especially when it This is a big problem. citizens the right to freedom of expression of the problem involves the constitution of.

"Once again, the Standing Committee of the National People's Congress's decision on safeguarding Internet Security" section fifth "was established in third, Webpage pornographic Web sites on the Internet, provide pornographic site link service; or spread of pornographic books, videos, audio, images." Provided the legislative basis for expanding interpretation about "pornography", but a trouble problem, this decision was not clearly basis. Maybe someone will say, this decides the fifth "through the Internet, Article 1 of this decision, second, third, fourth of the acts listed in other behavior, which constitutes a crime, shall be investigated for criminal responsibility in accordance with the relevant provisions of the criminal law" can provide a basis for interpretation, but it said was "in accordance with the relevant provisions of the criminal law", but the criminal had no relevant provisions, and the relevant explanation until July 15th this year, is not clearly explained. At the same time, the need to pay attention to is, this decision fifth and other various repeatedly referred to "use" the word, the word means, the decision of punishment is to the Internet as a tool, influencing other legal behavior, rather than the Internet itself as the order of social public order.

Fourth, step back, even for the interpretation of the "pornography", criminal law scholars on the "voice" still have different views, such as professor Zhang Mingkai "criminal law" mentioned in the "however, the obscene speech information deemed pornographic 'goods',' items' beyond the language may have the meaning of" (Third Edition, page 846). This shows that in the circles of criminal law, "legality" the principle of value attitude.

Finally, special attention is required, the better interpretation of the provisions of article tenth, "said the interpretation of information network, including computer, TV, telephone, mobile phone and other electronic equipment for the computer Internet, radio communication network, fixed network and mobile communications network, information network terminal, and open to the public local area network." This essentially means, the two interpretation not only include public mainly discusses the object of the Internet, such as the Internet forum, micro-blog and other public space, also includes a fixed telephone, mobile phone messages, and the use of Internet personal information (such as QQ, Micro message, MSN chat and so on), these activities often does not have the public, many of the constitution "communication secret" category of privacy, and the interpretation of the classified as "information network" to presume that they certainly have "public", which is a very dangerous.

In fact, expanding interpretation or analogy is relatively constant and change law between the social relations of means, but the distinction between the two is that analogy is referred to two categories, but expanding interpretation involves the same. Of course, in the judgment of the relationship between the two when still have differences, then the key will be to see whether the violation of the legislative intent of the law or law. From the above comparison shows, will "obscenity" from paper items such as expanded to include information network such as electronic pornographic material, this is the interpretation of the expansion, because did not change the purpose of legislation and legal protection, and other legislation as a basis, but the criminal law crime related provisions of the "public place" interpreted to include "information network", is a substantive change in the original intention of legislation, so it belongs to analogy, does not belong to the expanding interpretation.

2, song second defence points out, "the concept of using the same words in the criminal law should be consistent, which is the guiding principle, but not absolutely...... There is no legal elements can restrict our can not be 'public' expanding interpretation to the information network space." Indeed, the law does not expressly say the same words, concepts must be consistent, but a serious national criminal law, being consistent with the concept has not only the syntax of beauty, but more importantly, the penal code provisions of its concept consistency can remove ambiguities, legislative issues, which helps to understand the society better and comply with this code. Song the reasons can be summarized as "no law expressly prohibited to do so to explain", but a substantial expansion of the police power, reduce the citizens freedom of speech, but also against the word meaning explanation, interpretation, historical interpretation, purpose interpretation of judicial interpretation, not with no provisions for as source of legitimacy interpretation, but can only find authorization rules directly as a source of legitimacy interpretation. Not even to explain, from the legal considerations should only be made in favor of the expansion of civil rights limited police power, rather than the reverse. In fact, assuming the legislative power of the judicial interpretation of the Supreme Court, though one problem long been academic concern, but as far as I could see, the judicial interpretation of criminal law does not have the obvious analogy and limit the civil rights expansion of police rights situation.

3, song third defense rightly point out that "in the information network system of space in the 'public' fabricating and spreading false information, does not cause information network system in space 'public' disorder", but the song says because information network can cause the real world "the chaos of social order therefore," can be interpreted as stipulated in article 293 of the criminal law fourth. But in fact, this is not the song, the judicial interpretation of the logic.

Professor Qu defense logic that is, because of speech on the Internet may cause network of social order in the chaos, so stir up trouble crime "public places, creating a disturbance" can be interpreted as including online speech "creating a disturbance". As can be seen, Professor Qu logic is still, using the information network in real space the chaos of social order, therefore need to punish the information network of speech.

The Supreme People's court spokesman Sun Jungong to "explain" the background and main contents of the can be regarded as the explanation of the official explanation. He mentioned, information network has two basic attributes, namely "nature" and "the public property". "Explain" the fifth combination of the information network of two basic attributes, the two basic actions of stir up trouble crime information networks. "Explain" the first paragraph of article fifth is aimed at the information network as a "tool", the implementation of abuse, to intimidate others, using the information network vile, criminal behavior undermines social order. "Explain" the fifth provisions of the second paragraph, "fabricate false information, or knowingly false information up, spread in the network information organization, personnel, or to spread information on the Internet, in creating a disturbance, causing public serious disorder, according to criminal law article 293rd (four) of the Convention, to conviction of crime punishment."

The above description of sun spokesman actually indicates, the explanation is that the criminal law article 293 (four) "in public places, creating a disturbance, causing serious disorder in public places." In the "public order" interpreted to include information network, public order, rather than the real world public order. From this perspective, Professor Qu third point defense part itself can as to refute two explained the reason, there is an obvious conflict with the overall argument. The professor did not understand the song official explanation, so on this point defense is not comprehensive.

Belongs to the "prejudice and social management order, crime in the criminal law system of crime", the law is "social order", the charges of public order does not include network space within the public order, such as "party Korean War" in a variety of speech melee, such as a large number of irrigation in BBS even booing abuse speech. It is in this sense, Professor Qu correctly pointed out, "in the information network system of space in the 'public' fabricating and spreading false information, does not cause information network system in space 'public' disorder. Because whether it is from the fact or from a legal perspective, can cause the information network space 'public' chaotic behavior, should be the provisions of the criminal law article 285th, 286th of the illegal invasion, destruction of the crime of computer system. Perhaps this is where the real problem."

Read the article 293rd of the criminal law. The first fourth articles in public places "stir up trouble trouble carefully, causing serious disorder in public places", we can notice that: 1) before the word "public" and "public order" is carrying in tone, the same with a logically after the sentence, namely "public order" refers to the former sentence "public order". According to this logic, if you want to punish the information on the Internet is creating a disturbance, its harm is the information network of public order. 2) but what is the information on the Internet is creating a disturbance, the two interpretations in order to make out a good case, the provisions of the criminal law of "creating a disturbance" in the interpretation of the provisions of the "fabricate false information, or knowingly false information up, spread in the network information organization, personnel, or to spread in the network information, booing trouble", can be seen in high definition and interpretation of the essence, in the very great degree will be "creating a disturbance" change.

To explain this point two involves how to deal with the problem of false information and other relevant charges, but the coordination problem lies in the problem. At the same for "obstructing the administration of public order crime" category of article 291 of the criminal law in the provisions of the "fabrication, deliberate dissemination of false terrorist information". First of all, the criminal law focuses on the punishment of serious fabricating and spreading false information behavior, this is because of the terrorist information often is "clear and present danger", while for the false information in general is left up to the network self correction, civil infringement, libel and other means to deal with. Secondly, fabrication, deliberate dissemination of false terrorist information, seriously disrupting social order, "is less than five years imprisonment, criminal detention or control, resulting in serious consequences, at more than five years in prison." But if the fabricate false information in the network information on creating a disturbance, if also according to stir up trouble crime to handle, can see also "is less than five years imprisonment, criminal detention or control", this does not reflect the difference of false information and false terrorist information on hazards and real-time. In fact, because before the defiance and affray crime is aimed at "behavior" and non speech, the harm is the real world, "public order", so it was a penalty and punishment "false terrorist information" "speech" charges quite. This point is further proved that the legislative intent of article 293 of the criminal law.

The three defense, the Professor Qu for the two related crime judicial explanation is not scientific and reasonable. Because our country has no constitutional review mechanism, so that in the matter of basic constitutional rights, criminal law scholars, authorities and the public should "legality" in principle to give more value.

Appendix: the crime of the interpretation of the provisions, the provisions of the criminal law and the Supreme People's court spokesman Sun Jungong to "explain" the background and main contents described in:

1) the two high fifth interpretation:

Using the information network abuse, threatening, vile, undermines social order, in accordance with the criminal law article 293rd (two) of the Convention, to conviction and stir up trouble crime punishment.

Fabricate false information, or knowingly false information up, spread in the network information organization, personnel, or to spread information on the Internet, in creating a disturbance, causing public serious disorder, according to criminal law article 293rd (four) of the rules, the conviction of crime punishment.

2) article 293rd of the criminal law

One of the following acts of creating trouble, undermines social order, is less than five years imprisonment, criminal detention or control:? (a) they beat the others, if the case is serious;? (two), chase intercept, insulting, threatening to others, if the case is serious;? (three) strong with hard or any damage, occupation of public or private property, if the circumstances are serious;? (four) in a public place, creating a disturbance, causing serious disorder in public places. ? many people repeatedly commits the act, serious damage to the social order, the Department for more than five years to ten years in prison, can be fined.

3) spokesman explained (four):

The identification problem of the implementation of stir up trouble crime information networks. Information network has two basic attributes, namely "nature" and "the public property". The information network as an effective way to obtain information, buying and selling of goods, send and receive mail, information network has "tool attribute". At the same time, the information network is the communication platform, is an extension of the real life, is an important part of social public order, but also has a strong "public property". "Explain" the fifth combination of the information network of two basic attributes, the two basic actions of stir up trouble crime information networks.

"Explain" the first paragraph of article fifth is aimed at the information network as a "tool", the implementation of abuse, to intimidate others, using the information network vile, criminal behavior undermines social order. In real life, the others insult or intimidate others, if the case is serious, constitute a crime. Some lawless use spread rapidly, the network information is not easy to eradicate such characteristics, network of have the aid of abuse, to intimidate others, social harmfulness even more. "Explain" will use the information network implementation defined as criminal law article 293rd (two) the provisions of item, helps to fully protect the citizen's right of reputation and personal dignity, increase network "positive energy", the maintenance of public order, in accordance with law spirit.

"Explain" the fifth provisions of the second paragraph, "fabricate false information, or knowingly false information up, spread in the network information organization, personnel, or to spread information on the Internet, in creating a disturbance, causing public serious disorder, according to criminal law article 293rd (four) of the Convention, to conviction of crime punishment." The network space belongs to public space, an important part of network order is the social public order. With the rapid development of information technology, information network and people's life is closely related to com.. The maintenance of social public order is the common responsibility of all Internet users. Some criminals use information network malicious fabricated, spreading false information, creating a disturbance, caused the social public order disorder, which is harmful to the society is to stir up trouble crime, shall be investigated for criminal responsibility.