网络时代的刑事立法

The Criminal Legislation in the Internet Era

刑法必须敏感地应对网络时代的各种变化。但是,面对网络时代的新型犯罪时,能够通过刑法解释路径予以应对的,就不需要采取刑事立法路径。在采取刑事立法路径应对网络犯罪时,没有必要也不应当制定所谓"网络刑法";当下应当在刑法典内,分别采取增设条款或者在既有条款中增设行为方式与行为对象的立法模式规制新型犯罪。在增设新罪时,必须坚持法益保护主义。作为刑法保护对象的法益,其内容总是随着社会的发展而不断变化。其中,有些利益以前没有受到刑法保护甚至没有被认为是一种利益,现在需要由刑法保护时,就成为一种新型法益;有些已经受到刑法保护的传统法益,在网络时代增加了新的内容(利益),外延发生了变化,且受到了新的侵害;有些利益原本属于传统法益,国外刑法与旧中国刑法都予以保护,但我国现行刑法没有予以保护,且这种传统法益在网络时代受到了新的侵害。以上三个方面,都是网络时代的刑事立法需要高度重视的内容。

Facing the new type of crimes arising in the network era, when the criminal law can deal with this type of crimes by the approach of criminal interpretation, there is no need to adopt the approach of criminal legislation. When we take the approach of criminal legislation to deal with the internet crimes, there is no need to and should not stipulate a special criminal law as so called Cyber Criminal Law. At the current stage, criminal legislation should regulate this new type of crimes by two different ways： that is, adding new articles of crimes, or adding new types of criminal behavior and new kinds of behavioral objects within the scope of the currently effective penal code. When adding new articles of crimes, the principle of protecting legal interests must be maintained. As the protected object of the criminal law, the content of legal interests is constantly changing with the development of the society. Among this changing, certain interests, which were not protected by the criminal law before or even not treated as a kind of interests, now become a new type of legal interests that need to be protected by the criminal law ; certain traditional interests, which have been protected by the criminal law, now add some new contents （or interests） in the internet era, thus their extension changes and attracts some new kinds of infringement; certain interests are originally belonging to traditional interests which were protected by the overseas criminal law and the old Chinese criminal law, while are not protected by Chinese current criminal law and this kind of legal interests are infringed by some new ways in the internet era.