网络暴力犯罪“法不责众”的规制难点与刑事应对

The Regulatory Difficulties of"The Law Does Not Punish the Crowd"in Network Violence Crimes and Criminal Responses

网络暴力犯罪“法不责众”现象源自其群体性、体系性、技术性特征。由此造成的刑事规制难点表现为:参与人员的处罚范围如何限定;技术性帮助行为在理论上认定存疑;网络暴力行为涉及罪名较为广泛。因此有必要引入类型思维作为司法适用中的解决方案,根据网络暴力的参与主体、侵害对象与侵害行为进行类型化分析:积极参与的普通主体一般不予入罪;重点打击职业化的参与主体;根据网络平台的类型不同采取相应的认定标准。针对侵害对象为特定群体、公众人物的入罪规制需慎重;侵害对象为弱势群体时可以在入罪认定上予以适当放宽。技术性帮助行为是否可罚需考察其在整个网络暴力犯罪中的重要性,部分网络暴力侵害行为的归责应结合具体罪名中的前置法规定加以认定。

The key point in the governance of network violence crimes lies in how to correct the tendency of the concept of"the law does not punish the crowd".Nowadays,according to its different types,network violence can be distinguished as mass spontaneous network violence and industrial chain network violence,which makes network violence crimes have group,extensive participation and systematic characteristics,and with the progress and wide application of technological means,the technological qualities of network violence crimes can also be highlighted.Obviously,the corresponding qualities of the above network violence crimes not only directly caused the emergence of the phenomenon of"the law does not punish the crowd",but also brought the corresponding criminal regulation difficulties:First,how to limit the scope of punishment of the participants in the standard is not clear;Second,the network violence in the act of technological help will face the neutral help behaviour theory of the identification;Third,network violence involves a wide range of charges.It is necessary to introduce typological thinking as a solution to the above difficulties,so as to draw a clear criminal law scope for network violence.Typological thinking ensures that the object of observation and the starting point for thinking are in objective facts,on the basis of which value judgement is made.When dealing with judicial problems such as unclear standards of punishment judgement in network violence crimes,typological thinking can undertake the important task of analysis the facts of a specific case to make proper attribution judgement.Existing typological research in academia has problems such as duplication of types,inaccurate delineation,and lack of examination of important attribution factors.In this regard,a specific typology based on the three elements of participating subjects,targets and specific behaviour of the constructed network violence can make the thinking of the problem more comprehensive.First of all,according to the network violence involved in the main body of the mutual operation of the relationship and assume the function of typification.Different identification standards are adopted for ordinary participants who play an active role,professional network participants and network platforms,in which ordinary subjects who are actively involved are generally not incriminated,focusing on combating professional participants,and distinguishing network platforms into three kinds of platforms,network communication,trading and searching,and assigning different degrees of supervisory responsibility to them.Secondly,a typological distinction is made according to the target of network violence.The criminal law protection of specific groups and public figures needs to be cautious,focusing on combating network violence crimes against vulnerable groups such as minors and women,and the corresponding criminal law protection should be increased.Finally,according to the infringement behaviour of network violence to make a typological distinction.For the technical helping behaviour,the importance of technical helping behaviour in the whole network violence crimes should be comprehensively examined.And the judgement should be carried out from three perspectives:whether the main offender has urgency,the technical difficulty of the helping behaviour,and the strength of the business correlation.At the same time,if the acts of network violence are in line with the norms of the law or the norms of behaviour recognised by the law,the attribution of responsibility should be denied.