行为解构与危险溯源: “网络暴力” 的刑事治理

Interpreting Online Violence Behavior and Tracing the Source of Its Danger：Criminal Governance of Online Violence

摘要:

网络暴力刑事治理的难点在于，危害行为与危害结果之间因果流程的判断标准并不明晰，且众多参与主体责任划分界限并未统一。解决路径为：采行为主义立场，将刑事治理对象由整体网暴现象转向网暴引发行为，结合行为事实本质与规范评价厘清网暴结果引发的行为范畴。在不法层面，以法益侵害为中心，围绕人身法益与网络空间秩序法益的双层性，探寻抽象危险证立下积量入罪的可行路径。在有责性层面，区分罪责与预防必要性，采取行为基准下考量行为人危险的实质判断模式。整体援引比例原则，贯通行为应罚性与危险需罚性，融入适当性、必要性和均衡性三项子原则，以刑事治理为手段，实现法益保护目的与言论自由保障效果的平衡。

Abstract:

The social harm of online violence is becoming increasingly prominent, and there is an urgent need for criminal law to respond. The difficulty in criminal governance lies in the lack of standards for the degree of infringement of legal interests and the need to determine whether the subject needs to be punished or not. The criminal governance of online violence should not only avoid the mismatch between the infringement of legal interests at the practical level and the illegal evaluation at the normative level, but also return to the source of danger to prevent the erosion of freedom of speech. The resolution to this problem lies in deciding on punishment and the need for punishment. The object of criminal governance for online violence belongs to the category of behavior and should be deconstructed as the behavior triggered by online violence. The phenomenon of online violence is collective,irrational,large-scale human flesh search and online language violence, and the behavior triggered by online violence is correspondingly divided into three types: fact exposure, fact distortion, and value distortion,which are essentially information transmission behavior. According to existing laws and regulations,the behavior triggered by online violence can be evaluated as infringing on citizens' personal information , defamation, and insulting behavior, with characteristics of aggressive information, object specificity, and quantity accumulation. Unlike traditional violations of citizens' personal information, defamation, and insults, online violence requires quantitative evaluation due to the accumulation of information. Although the existing model of quantity crime can provide quantitative standards, the judgment of quantity still needs to seek substantive basis to match the degree of legal interest infringement and avoid excessive formalization. The solution to the problem of punitive nature should revolve around the judgment of the degree of legal interest infringement. The behavior caused by cyberbullying not only causes damage through information transmission but also undermines the order of cyberspace information management. Legal interest infringement has a dual nature of personal legal interest and cyberspace information management order legal interest. The latter belongs to order legal interest with the ultimate goal of protecting personal legal interests as the underlying layer. As a barrier layer，it can provide a unified judgment standard for the degree of legal interest infringement， and the destruction of the order of cyberspace information management can be quantified as the number of clicks browses and reposts. In terms of whether to punish or not a cumulative crime model should be adopted and the overall degree of legal interest infringement should be represented through a quantitative indicator. The solution to the issue of punitive nature should focus on tracing the source of danger， in order to avoid the cold cicada effect and the tendency of excessive instrumentalism in criminal law， and to avoid tracing the danger of the perpetrator on the basis of illegal evidence. The principle of proportionality should be introduced to achieve the minimum cost of criminal governance of online violence through cooperation between human and social standards，achieve the internal goal of protecting legal interests in criminal law，while avoiding the erosion of freedom of speech outside the law， and alleviate the relationship between the right to punishment and individual rights of citizens. The principle of appropriateness should be used to determine the abstract danger caused by cyberbullying behavior，and the unity of quantitative form and substantive judgment should be achieved by combining the level of economic development with the actual effects of cyberbullying behavior. We should pursue the principle of necessity to minimize damage in the criminal governance process，and comprehensively evaluate the necessity of preventing the perpetrator based on the number of objective actions，subjective purpose，and triggering possibility，in order，to achieve hazard tracing. We should achieve the minimum cost and maximum efficiency of criminal governance based on the principle of balance，adhere to the principle of restraint in criminal law， and maintain the last resort in connection with administrative sanctions. By implementing strict but appropriate measures ，one can trace the source of danger and maximize the effectiveness of criminal governance.