网络不正当竞争犯罪的司法巡思与立法应对

Criminal Judicial Retrospect and Legislative Amendment Suggestions for Network Unfair Competition Crimes

  • 摘要: 网络刷单、网络恶意评价、网络流量劫持等新型网络不正当竞争行为泛滥不止,严重破坏了正当的网络竞争利益、消费者合法权益、网络市场公平竞争及管理秩序,但刑事处罚明显不足,传统罪名通过扩张解释提供的司法入罪通道面临制度张力有限的短板,使网络不正当竞争行为的刑事制裁边界模糊。网络不正当竞争秩序法益的观念阙如,是刑法介入立场困顿不清与刑事制裁乏力的根本原因,应确立网络市场正当竞争管理秩序作为新型刑法的法益地位。原《反不正当竞争法》与刑法规定,深陷规范供给与网络犯罪代际脱节的制度困境。立足修改后的《反不正当竞争法》与颁行的《电子商务法》及其相关条款,可以增设第231条之一(网络不正当竞争罪)发挥一般的基本规制作用,增设第231条之二(破坏网络市场信用评价罪)发挥特殊的专门规制作用。

     

    Abstract: New network unfair competition behaviors such as fake network sales order, malicious network evaluation and network traffic hijacking have increased constantly, which has brought serious damage to the legitimate interests of network competition, the legitimate rights and interests of consumers and the fair competition and management order of the network market. But the criminal punishment is obviously insufficient, while the judicial channels provided by the expansive interpretation on traditional offenses have been constrained by the limited judicial tension, thus, the sanction boundary of network unfair competition crimes become fuzzy. As a matter of fact, the concept absence of legal interests of network unfair competition order is the root cause of the dilemma of the position of criminal law intervention and the weakness of criminal sanctions. Therefore, the legitimate interest of network market competition should be confirmed as a new criminal legal interest. The provisions of the previous Anti-Unfair Competition Law and Criminal Law are trapped in the institutional dilemma of the intergenerational disconnection between the normative supply and the network crime. According to the newly revised Anti-Unfair Competition Law and the newly enacted E-Commerce Law, the Article 231-1 (the crime of Network unfair competition) should be added to play a general role in the basic regulation, while the Article 231-2(the crime of undermining the network market credit evaluation) should be added to play a special regulatory role.

     

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