论为他人提供“翻墙”工具行为的定性

On the Behavior Nature of Providing "Wall-climbing" Tools for Others

出于对互联网的管控需求,我国通过技术手段屏蔽了部分境外网站。但是,网民对境外网站的访问需求是客观存在,人们会尝试通过技术手段突破封锁,这些行为俗称为"翻墙"。"翻墙"的实现需要技术及资金支持,所以互联网长期存在提供"翻墙"软件工具以谋取利润行为。司法实践一直将其提供"翻墙"工具的行为定性为提供侵入、非法控制计算机信息系统程序、工具罪,但是,"翻墙"工具的技术原理是通过设立虚拟专用网的方式绕过我国网络监管部门的技术封锁,并未对计算机信息安全造成破坏,不宜定为计算机犯罪。但是,该行为实际是违反国家规定,未经许可擅自经营电信业务的行为,是对市场准入秩序的破坏,与非法经营罪所保护的法益与其构成要件更加接近。

Due to the demand for the regulation and control of the Internet, China has blocked some overseas websites via technical means. However, the demand of netizens to visit overseas websites is objective, and people will try to break through the blockade via technical means, which is commonly known as "wall-climbing". The realization of "wall-climbing" needs technical and financial support, so the Internet has long provided "wall-climbing" software tools to make profits. Judicial practice has always defined the behavior of providing "wall-climbing" tools as the crime of intruding and illegally controlling computer information system programs and tools. However, the technical principle of "wall-climbing" tools is to bypass the technical blockade of China’s network supervision departments by setting up a virtual private network, which does not cause damage to computer information security and should not be classified as a computer crime. However, the behavior actually violates the state regulations and operates telecommunications business without permission, which destroys the order of market access and is closer to the legal interests protected by the crime of illegal operation and its constitutive elements.