利用抢票软件有偿代购火车票行为的刑法定性——以刘金福倒卖车票案为例

Criminal Law Characterization of the Act of Using Ticket Snatching Software to Buy Train Tickets on Behalf of People for a Payment Date—Taking Liu Jinfu’s Ticket Selling Case as an Example

摘要: 当前刑法对线上利用抢票软件实施倒卖火车票行为并未明确规定，司法实践中对“倒票”行为的认定也不统一。以刘金福案为切入点，对利用抢票软件提供有偿代抢服务这一“倒卖”行为，重新解释为“以营利为目的实施，具有应受刑罚处罚之法益侵害性的贩售行为”，并将之与民事代理行为从“是否具有营利目的”、“是否有偿转售火车票”、“是否侵害他人平等购票机会”区别。倒卖车票罪保护的个别法益应由“车票管理秩序”转为“公众的平等购票权”。利用抢票软件代抢火车票加以倒卖的行为应被纳入刑法评价，否则易导致滥用技术剥夺公民本应享有的国家福利的现象，妨碍个人权利正当行使。

Abstract: Currently, the criminal law does not explicitly provide for the sale of train tickets through the use of online ticket-snatching software, and the determination of “ticket-selling” in judicial practice is not uniform. Liu Jinfu case as an entry point, the use of ticket snatching software to provide paid services on behalf of the “dumping” behavior, re-interpreted as “for profit for the purpose of the implementation of the legal interests of the infringement of the criminal penalties of the act of peddling”, and will be with the civil agent behavior from the It also distinguishes it from civil agency behavior in terms of “whether or not it has a profit-making purpose”, “whether or not it resells train tickets for a fee”, and “whether or not it infringes on other people’s equal opportunity to purchase tickets”. The individual legal interest protected by the crime of ticket scalping should be shifted from “the order of ticket management” to “the public’s equal right to purchase tickets”. The use of ticket-snatching software to snatch and sell train tickets on behalf of citizens should be included in the evaluation of criminal law, or else it will easily lead to the abuse of technology to deprive citizens of the national welfare they should enjoy and impede the legitimate exercise of individual rights.