电商平台刷单现象的刑法规制

Criminal Laws and Regulations on E-Commerce Platform Brush-Off Phenomenon

摘要: 数字经济背景下，电商平台为争夺流量而出现刷单炒信现象，构建虚假订单以提高销量及好评。该行为影响市场竞争秩序及消费者权益，但现有法律的规制尚且无力。司法实践将首个刷单入刑案定罪为非法经营罪，此后大量刷单行为均以非法经营罪的其他方法定罪。然而刷单行为与非法经营罪所列行为并不具有危害相当性，不适宜被兜底条款涵摄；且刷单行为不能符合非法经营罪中违反国家规定的构成要件，因此以该罪处罚有突破罪刑法定之嫌。在现有的刑法中，虚假广告罪维护的法益与刷单行为所侵害的法益相契合，且具备构成要件符合性，刷单行为应当适用虚假广告罪。竞争必然存在损害，调控市场不正当竞争行为时，不能一以概之为保护权利，需要适度规制。以虚假广告罪治罪时，仍需保持刑法的审慎，考察是否具有刑法治理对象的较高危害性。

Abstract: Under the background of digital economy, e-commerce platforms compete for traffic and appear the phenomenon of brushing and speculation, constructing false orders to increase sales and favorable reviews. This behavior affects the order of market competition and consumers’ rights and interests, but the regulation of the existing laws is still weak. Judicial practice convicted the first criminal case of single-sheet swiping as an illegal business crime, and since then, a large number of single-sheet swiping behaviors have been convicted by other methods of illegal business crimes. However, the act of single-sheet swiping and the illegal business crime listed behavior does not have the harm equivalent, is not suitable to be covered by the underpinning provisions; and single-sheet swiping behavior cannot meet the illegal business crime of violating the state provisions of the constitutive elements. Therefore, the punishment for the crime of illegal business operation is suspected of breaking the law of crime and punishment. In the existing criminal law, legal interests defended by the false advertising crime are aligned with legal interests infringed by the act of swiping behaviors; besides, the act of swiping has the composition of the elements of conformity; brush single behavior should be applied to the crime of false advertising. Competition is bound to exist damage, regulation of unfair competition in the market, cannot be generalized as the protection of rights, the need for appropriate regulation. When the crime of false advertising is used, it is still necessary to maintain the prudence of criminal law and examine whether it has the higher harm of the object of criminal law governance.