刷单炒信样态的认识误区及刑法评价

Misunderstanding and Legislative Evaluation in Criminal Law on Forms of Faking Transaction and Credit Standing

刷单炒信是网络平台交易中司空见惯的违法现象。由于未能厘清其不同样态及法益侵害,理论与实务对刷单炒信的刑法评价仍存在较大争议。普通刷单炒信、组织刷单炒信及提供刷单平台服务是刷单炒信的不同样态呈现,三者在行为结构、社会危害及法益侵害等方面各有不同表现,刑法应当予以区分评价。尽管当前网络平台违法犯罪形势严峻,但普通刷单炒信不具有相当社会危害性,不宜适用刑法规制。相比之下,组织刷单炒信严重违反国家广告经营管理制度,应以虚假广告罪论处。提供刷单平台服务严重违反互联网信息服务经营许可制度,应成立非法经营罪。组织刷单炒信中包含提供刷单平台服务内容的,可按牵连犯从一重处断。

It is a common illegal phenomenon in online platform to fake transaction and credit standing. The failure to clarify the different forms and legal interests of infringement results in a great controversy in the theory and practice of legislative evaluation in criminal law. Faking transaction and credit standing take in three forms including individual conduct, organizing others to operate and offering platform services, which have different performance in behavior structure, social harm and legal interest infringement, therefore should be differentiated and evaluated in criminal law. Although online crime takes place frequently, common individual conducts of fake transaction and credit standing do limited harm to society and should not evaluated by criminal law. In contrast, it is a serious violation of the national advertising management system to organize mass conducts, which should be sued for false advertising. It is a serious violation of the license system of Internet information service to provide platform for faking transaction and credit standing, which should be sued for crime of illegal operation. If platform services are provided in the organization of faking transaction and credit standing, charge of implicated offender should be added.