网络犯罪计量对象海量化的刑事规制

我国司法解释性文件根据具体网络犯罪的性质不同,将犯罪对象、危害行为、损害后果、参与人员等计量对象的数量纳入定罪量刑的考量因素。司法实践中这种计量对象的海量化出现使网络犯罪的事实认定与刑事处理饱受困扰,海量化对象使得传统刑事印证证明模式面临挑战,计量异议的反驳困难导致控辩举证不能,定罪量刑标准极易突破而造成刑事处罚扩大化和重刑化,计量事实认定如何确立合理规则存在难题。基于网络犯罪计量对象海量化给司法实践造成的现实困境,应立于秩序维护和人权保障的双重角度,结合刑事法律规定和既有实践经验,在证明方法、证明标准、刑罚适用、入罪条件等方面构建对其处理的适用规则,具体包括,以证明方式的概括印证取代计量对象的具体印证,将计量事实的绝对优势证明独立于普遍性最高证明,以量刑上的从轻处罚弥补事实上的不利认定,从法定刑升格的单一数量标准转向数量与情节的并合标准。

Criminal Regulation concerning the Huge Number of Objects Calculated in Cybercrime

The judicial interpretation documents of China take the number of objects calculated such as the object of the crime the harmful act the consequence of the damage the persons involved into account in determining the conviction and sentencing according to the different nature of specific cybercrime.However the trend of increasing quantity of relevant objects calculated in judicial practice is making the fact finding and criminal treatment of cybercrime be full of troubles for example the huge number of objects challenges traditional criminal proof mode of corroboration the difficulty in refuting the objection to the calculation leads to the inability of the prosecution and the defense to provide evidences the easily breaking through of the standard of conviction and sentencing leads to the expansion and severity of criminal punishment it is difficult to establish reasonable rules on calculation fact finding.Based on the practical difficulties caused by the huge number of calculated objects of Cybercrime to judicial treatment it is necessary to set forth the rules applicable to its treatment in terms of proof method proof standard penalty application conviction conditions and so on by taking into account the provisions in criminal legislation and existing practical experience and on basis of the dual perspectives of order maintenance and human rights protection.These rules concretely include that the generalized corroboration replaces the concrete corroboration of calculated objects in terms of the proof method the proof of absolute preponderance of calculation facts is independent of the universal highest standard of proof the lesser punishment in sentence makes up the unfavorable fact finding the sole standard of number for aggravated legal penalty is changed as a standard of combining the number and circumstances.