網絡暴力犯罪“法不責眾”的規制難點與刑事應對

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

網絡暴力犯罪“法不責眾”現象源自其群體性、體系性、技術性特徵。由此造成的刑事規制難點表現為：參與人員的處罰範圍如何限定；技術性幫助行為在理論上認定存疑；網絡暴力行為涉及罪名較為廣泛。因此有必要引入類型思維作為司法適用中的解決方案，根據網絡暴力的參與主體、侵害對象與侵害行為進行類型化分析：積極參與的普通主體一般不予入罪；重點打擊職業化的參與主體；根據網絡平台的類型不同採取相應的認定標準。針對侵害對象為特定群體、公眾人物的入罪規制需慎重；侵害對象為弱勢群體時可以在入罪認定上予以適當放寬。技術性幫助行為是否可罰需考察其在整個網絡暴力犯罪中的重要性，部分網絡暴力侵害行為的歸責應結合具體罪名中的前置法規定加以認定。

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 recognized by the law, the attribution of responsibility should be denied.