网络暴力的刑法规制研究

Research on the Criminal Law Regime of Cyber Violence

摘要: 网络暴力是一种涵盖网络语言暴力、捏造传播网络谣言和人肉搜索行为的侵犯他人权益的社会现象。随着信息网络技术的发展呈现出井喷态势，极大地破坏了网络安全环境、严重地侵犯了公民的合法权益。但我国现有的法律规范体系在应对网络暴力时略显不足。民法行政法等法律规范力度较弱，刑法中部分罪名的构成要件又与网络暴力行为不相一致导致网络暴力难以入刑。为有效应对日趋严重的网络暴力现象，一是应当出台司法解释，明确网络暴力犯罪的构成要件和适用情形，并纳入现行刑法体系予以规制；二是完善亲告罪自诉转公诉程序，明确司法机关主动介入的依据和标准，弥合亲告罪自诉转公诉程序之缺陷，有效保障被害人的合法权益。

Abstract: Cyberviolence is a social phenomenon that encompasses online verbal violence, fabrication and dissemination of online rumors and doxing that infringe on the rights and interests of others. With the development of information network technology, there has been a blowout trend, which has greatly damaged the network security environment and seriously infringed on the legitimate rights and interests of citizens. However, China’s existing legal and regulatory system is slightly insufficient in dealing with online violence. Legal norms such as civil law and administrative law are weak, and the constitutive elements of some crimes in the criminal law are inconsistent with online violence, making it difficult to criminalize online violence. In order to effectively respond to the increasingly serious phenomenon of online violence, First, judicial interpretations should be issued to clarify the constitutive elements and applicable circumstances of online violent crimes, and include them in the current criminal law system to regulate them; The second is to improve the procedures for transferring private prosecutions for personal accusations to public prosecutions, clarifying the basis and standards for judicial organs to actively intervene, bridging the shortcomings of the procedures for transferring private prosecutions for personal accusations to public prosecutions, and effectively protecting the lawful rights and interests of victims.