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Introduction

The catastrophic new coronary pneumonia epidemic that broke out since the end of 2019 posed severe challenges to the Chinese people's lives and national order. During the spread of the epidemic, the extremely high-intensity information on the information about the new coronary pneumonia epidemic in the cyberspace always triggered a huge collective response. For the purpose of realizing the stability of public order, public security organs have actively carried out epidemic information management and control. However, the rumors that appeared in individual cases afterwards confirmed the public's doubts about the epidemic information processing mode and standards, and the speech control department active in the public view in the early stage of the epidemic became a target.

1. Binary disposal of epidemic information in judicial practice

In the epidemic situation information subject to administrative punishment by public security organs, according to different legal bases, it can be roughly divided into epidemic rumors that have been disposed of due to violation of Article 25 of the Public Security Management Punishment Law and violation of Article 11 of the Advertising Law of the People's Republic of China 1. Article 59 The “false advertisements” dealt with, the former account for a larger part of the report. The identification and punishment of false terrorist information and false information in the epidemic information have not been seen in various media since the end of 2019.

Judging from the judicial practice of epidemic information management and control, the judiciary basically adheres to the concept of rumors in the Public Security Management Punishment Law as the core to carry out management work. For the false terrorist information in Article 291 of the Criminal Law False information is basically not recognized. Even in cases where the scope of individual influence extends to the whole country and objectively has a significant impact on social order, administrative punishment is imposed only on administrative violations. Regardless of whether it is subject to public opinion or strict adherence to the legal principles of crime and punishment, the application of crimes of fabricating and deliberately disseminating false terrorist information and crimes of fabricating and deliberately disseminating false information is to respect the moral concept at the time of the disaster and is independent of epidemic rumors. Among the criminal policies, rumors are strictly distinguished from false terrorist information and false information in terms of administrative illegality. Since the current epidemic has not completely ended, the consideration of factors faced by the judiciary has not fundamentally changed, and the handling of rumors of the epidemic is still in the administrative management stage. After the epidemic has stabilized or ended, it does not rule out the possibility of entering the criminal stage.

2. Binary judgment of qualitative information

(1)Rumors, Facts and False Information

There is no opposite relationship between false terrorist information and false information. Of course, rumors may contain false terrorist information or false information, or there may be facts that have been confirmed after the fact. The difference lies in the timing of judgment, which is basically the conclusion of the purpose and value of criminal policy at different stages. In the case of the whistle blower, which is still repeatedly mentioned to this day, there is gradually a point of view that reflects before and not afterwards. Whether it is possible to establish a normative connection between unconfirmed and disruptive social order is precisely the torture of administrative punishment as a preventive measure in an emergency. In fact, through the most basic logical thinking, facing the sudden proliferation of public opinion, the social management functions of the public security organs and the primary purpose of the Public Security Administration Punishment Law did not give the public security organs room to fall through. Because the danger of tolerating the destruction of social order and even the disintegration of society has already been the self-denial of the above-mentioned organs and laws, and any action on the ground of spreading truth has become worthless because of the greater destruction of social value. In other words, the dissemination of objective facts should be a part of social operation based on the principle of proportionality, rather than breaking away from the social order with unnecessary and violent determination. In cases where it cannot be clearly confirmed, punishment methods such as admonishment are first taken to ensure the basic stability of the social order at a price sufficient for the perpetrator. In addition to the failure to consider the negative effects of the people’s mistrust, at least the reasonableness questioned by the public security organs and related legislation is not entirely appropriate.

(2). Management and prevention-rumors

Focusing on the prevention purpose of the overall criminal policy and the legislative spirit of the Public Security Management Punishment Law and the Advertising Law, the unconfirmed law enforcement content and the management order as the law enforcement purpose of the epidemic rumors are handled in line with the epidemic The basic requirements of formal rationality in the stage of information administration. Article 1 of the Law on Public Security Management Punishment provides that “in order to maintain the order of public security, protect public safety, protect the legitimate rights and interests of citizens, legal persons and other organizations, and regulate and guarantee that public security organs and their people’s polices perform their duties of public security management in accordance with law, Law. Article 1 of the Advertising Law stipulates, In order to standardize advertising activities, protect the legitimate rights and interests of consumers, promote the healthy development of the advertising industry, and maintain the social and economic order, this Law was formulated. The primary purpose of social order and regulation of related activities, and maintenance of order is rather the first principle of law enforcement. When the perspective crosses the Criminal Law to establish an ideal picture of the overall criminal policy, as the administrative punishment of the pre-treatment prevention part, its fundamental purpose is to conduct special preventive punishment for the behaviors that disrupt the order The social order will be repaired to prevent the behavior from spreading to serious crimes. Of course, this process is also limited by the rationality of the principle of proportionality.

(3)Deterrence and correction-false information

In contrast, as a criminal law and punishment for the purpose of deterrence and correction, it should always maintain an objective, ex-post, and fair evaluation. The false terrorist information and false information appearing in the field of criminal law can only meet the requirements of the elements of crime with the falseness confirmed afterwards, and use the legal principle of criminal punishment to ensure the reasonableness of the punishment. The legal benefits of the crime of “making and deliberately spreading false terrorist information” include both the moral breach of information caused by the falseness of information and the destruction of people’s trust and feelings, as well as the actual destruction of social order and the impact of social life. loss. The treatment of rumors focuses on the maintenance of social order, the prevention of special behaviors, and the punishment of false information more on the protection of specific legal interests. The two are in the two stages before and after the review and management of the epidemic information, and each assume different social functions. It is obviously neither reasonable nor possible to require public security organs to examine rumors based on objective facts for the purpose of realizing the protection of specific legal interests. From this perspective, the public security organs that were totally denied because they strictly adhered to maintenance of order have borne the consequences for the collective distrust of the judiciary.

3. Binary judgment of the qualitative order of epidemic situation

Various factors have caused a huge criticism of the public security organs in the so-called whistle blower cases. In addition to the above misunderstanding of the purpose of administrative punishment and punishment, another important reason is the understanding of public order or social order. difference. It should be pointed out that the public order in Article 25 of the Public Security Management Punishment Law in the epidemic information processing is different from the social order in Article 291 of the Criminal Law. In addition to the difference in terms used, this difference is essentially the difference between a substantial rational judgment centered on ethical norms and a formal rational judgment centered on factual elements.

(1) Public Order and Ethics

The public order in the epidemic information processing is to anticipate the overall stability of the current situation, is to realize the moral sense of the people and maintain the order of the code of conduct with ethical norms as the core. Since Chinese society is a society dominated by substantive rationality, the realization of purpose and the presentation of results are often the primary factors that determine people's emotions and sense of justice. It is not difficult to draw a conclusion from the public comments of various platforms on various types of epidemic disposal incidents. Whether it is possible to effectively end the epidemic, restore normal life order, and ensure the safety of one's own interests are the fundamental standards for the formation of mainstream values, and not only show the effectiveness of effective measures. Positive affirmation is also manifested as a strong denial of irrelevant measures, ineffective measures and obstructive actions. Any event that violates the above standards will trigger a collective response from the masses, trying to repair the damaged part of the moral sense through the reaction, which is not logic, only the purpose. Maintaining the stability of specific ethical norms is an evaluation standard for maintaining order effect. Unreasonably released information will cause extreme reactions of some people's moral sense, so that it is difficult for government agencies to predict and control the collective behavior of the masses. From this perspective, This is also the fundamental reason why the government releases information cautiously.

However, the spread of the so-called facts is often twists and turns, and it is not uncommon for public opinion to have a roller-coaster change under the guidance of some media. It is such a public order that administrative punishment wants to maintain. Maintaining a specific order of behavior is an inevitable choice for the prevention function to function, because changing the display of the concept of public order from concrete behavior to abstract legal interest will essentially nullify the prevention function, and can only allow the behavior to develop to the legal interest. Actually infringe and do nothing. Facts have proved that the Liszt gap cannot be completely overcome by the rational system of purpose. The need for justice requires precautions other than criminal law. If you firmly believe this, then the public security organs during the New Coronary Pneumonia made huge sacrifices.

(3)Social order and logical judgment

The social order in the elements of the crime is based on shaping the general norms of behavior, using the logical judgment of fact elements as the method to maintain the order of objective legal interests. The social order stipulated in Article 291 of the Criminal Law should be a collective manifestation of individual legal interests, and the damage to the individual legal interests within the collective scope is reflected in acts that constitute elements of the illegal type. The statutory principle of crime and punishment requires that “false information” and the legal interest content of “social order” have a causal relationship. Since the collective emotional reaction to “false information” does not cause actual legal interest damage, even if the “false information” is pre-falsified, The rumor caused an extreme reaction of the collective moral sense, and caused the behavior to deviate from the scope of the predictable public order. Then the social order that examines the legal benefits from an overall and ex-post perspective may not consider the result worthless.

Taking the virus isolation area as an example, an A posted a message that a hotel will house 300 patients with new coronary pneumonia, causing the nearby people to evacuate in a panic and the masks in the neighborhood are out of stock. From the perspective of ethical norms that determine the behavior of the people, the rumor seriously violates the moral standards of the surrounding people for personal safety protection and epidemic control, triggering a fierce collective reaction, leading to collective behaviors that deviate from the predicted range and should be subject to administrative penalties. However, it was later confirmed that there were indeed new coronary pneumonia patients admitted, but only 100, not 300. The massive evacuation of the people has indirectly suppressed the epidemic, and snapping up masks has also helped residents near the hotel to strengthen protection. From the perspective of legal interest protection, the result of this false information is not absolutely worthless. At this time, the purchaser who rebuked the rumors during the evacuation is also likely to see it as a whistleblower again. In this case, the launch of the criminal law was suppressed due to the small damage of legal benefits, and the affirmation of substantive justice made the deterrence and correction lose its value. Public order and social order are clearly distinguished here. Of course, it is not denied that the major losses caused by the early evacuation caused the act to be prosecuted according to law.

Conclusion

Crime of Fabricating and Intentionally Disseminating False Terrorist Information in Article 291 of the Criminal Law and the Crime of Fabricating and Intentionally Disseminating False Information and Article 25 of the Law on Public Security Administration Punishment, Articles 11 and 59 of the Advertising Law of the People's Republic of China Articles have fundamentally different legislative purposes and functions. The rumors and false information in the epidemic information are neither identical nor opposed, but are judgments of the information in different contexts. The former is based on unconfirmed and the latter is based on false facts. The impact of epidemic information on order should be distinguished as public order and social order. The former focuses on maintaining ethical and moral stability, while the latter focuses on protecting objective legal interests. In order to construct a criminal policy that combines general prevention and special prevention, an epidemic information processing mechanism that focuses on the combination of administration and criminality should be established.