“刷单炒信”的类型划分及刑法规制路径

Classification of Types of “Faking Transaction and Credit Standing” and the Path of Criminal Law Regulation

摘要: 目前实务界和学界对刷单炒信的定性仍存在争议。解决争议的关键在于厘清刷单炒信的具体类型。经营刷单平台和组织刷单炒信有入罪的必要。经营刷单平台能够成立非法经营罪和非法利用信息网络罪的竞合。组织正向刷单炒信可构成虚假广告罪，但在虚构销量的同时又虚构具有实质性内容的好评的行为才有可能构成虚假广告罪。而组织恶意好评型反向刷单炒信并不符合破坏生产经营罪的构成要件，对此类行为应以损害商业信誉、商品声誉罪论处。

Abstract: At present, there is still controversy in both the practical and academic circles regarding the qualitative issue of faking transaction and credit standing. The key to resolving disputes lies in clarifying the specific types of faking transaction and credit standing. The organizational faking transaction and credit standing, and operating faking transaction and credit standing platforms are necessary to be criminalized. Operating faking transaction and credit standing platforms can establish a competition between the crime of illegal operation and illegal use of information network. Organizing positive faking transaction and credit standing can constitute the crime of false advertising, but the act of fabricating substantial positive reviews while fabricating sales volume may constitute the crime of false advertising. However, the organization’s malicious positive review type reverse faking transaction and credit standing does not meet the constituent elements of the crime of damaging production and operation, and such behavior should be punished as the crime of damaging commercial reputation and product reputation.