网络刷单炒信刑事定性因果反思与司法坚守——非法经营罪之孽缘消解

网络刷单炒信被司法定性为非法经营,但却值得商榷。首先,非法经营罪规范保护的目的是防止国家特许经营制度被侵犯,与刷单炒信侵犯的网络市场的公平竞争秩序大相径庭;其次,网络刷单炒信虽违反“国家规定”,但是并不符合非法经营罪中“违反国家规定”这一构成要件,其虽然属于“违法经营”,但因为不存在相对应的合法经营而不属于“非法经营”;最后,司法定性根本原因在于网络刷单炒信社会危害性巨大,并且是在舆论压力之下无奈的司法犯罪化。因而,司法者应当有气度容忍社会不公而贯彻罪刑法定原则,是非曲直判断舆论风气而维护司法独立,坚守刑法的最后手段性并响应刑法谦抑性,当为司法应然路径。

Causal Reflection and Judicial Adherence of Criminal Qualitative Characterization of Online Brushing and Credit Manipulation:The Evil Causes in the Illegal Operation

Online brushing and credit manipulation are characterized as illegal operations, but it is worth discussing. First, the purpose of regulating and protecting the illegal business crime is to prevent the infringement of the national franchise system, which is quite different from the fair competition order of the network market that is infringed by the illegal business crime. Second,although online brushing and credit manipulation violate "state regulations", it does not conform to the constituent element of "violation of state regulations" in the crime of illegal business operation,and although it is "illegal business",it does not belong to "illegal business" because there is no corresponding legal business. Finally,the fundamental cause of judicial characterization lies in the great harm in the society brought by the online brushing and credit manipulation,and the inevitable judicial criminalization under the pressure of public opinion. Therefore,it should be the path of justice for judicial personnel to have the courage to tolerate social injustice and implement the statutory punishment of crimes,judge the public opinion on the right and wrong and maintain judicial independence,adhere to the last resort of criminal law and respond to the criminal law modesty.