中国禁网令制度的建构:从美国司法实践谈起

Construction of the Restriction of Computer Access as a Term of Probation or Supervised Release in China: on American Judicial Practice

面对我国网络资源逐步普及,上网地点与上网工具呈现多元化的现实情况,我国禁网令司法实践裁判情况并未体现该制度设计蕴含的针对性原则。我国禁网令司法实践可以考虑采取"针对纯正的网络犯罪行为适用单处或并处禁止上网或禁止进入网吧的禁止令"和"针对非纯正的网络犯罪区分适用禁网令"的司法裁量规则,同时在立法上扩大禁网令适用范围,增加针对假释犯罪人可以决定适用禁网令的相关规定。

Internet resources are gradually spread among people in China and the sites and tools for Chinese people to get access to internet are increasingly multiple, Confronted with those facts, the current legal practice of internet prohibition order is not conformed to the targeted principal, which is the core of this instrument. Based on the analysis of related legal practice in America, this article proposes that the following two principles should be applied to China＇ s legal practice. Firstly, prohibition of internet access or entering internet bar should be imposed on computer crime offenders on alone or together. Secondly, orders of internet restriction as released prohibition should be applied to computer related crime offenders in different occasions. Meanwhile, to improve the Chinese criminal law, the scope of the internet ban should be extent to released criminals on parole.