越轨还是犯罪？
----对网络“裸聊”行为犯罪化的正当性探讨
易珍春 张付
易珍春：北京市石景山区人民法院审判员
张付 北京现代职业学校教师
内容摘要：时间已经进入21世纪的第七个年头，中国的互联网终端用户已列世界第二，然而，任何事物总有两面，在享受网络技术带给我们便利的同时，它的负面影响也在逐渐显现。网络大潮，泥沙俱下，而“裸聊”正是大量不良网络行为中既受到广泛关注、又似乎很难定性的一类行为。有人认为这是一种犯罪，有人认为这只是一种个人行为，而作为一个司法工作者，在面对司法实践中的难题时，不仅要破题，更要解题，不仅要就案办案，更要去思考和解决隐藏在案件背后深层次的法律问题，这不仅是一名法官的职责，更是法官责任感的驱使。笔者从一个具有代表性的“裸聊”案件出发，层层剖析这一行为的本质、特征和社会危害性，得出该行为应当受到刑法规制这一结论。同时，试图在现有的法律框架内提出解决的方案。笔者认为，法律作为紧贴时代的学科，不仅应当维护自身的稳定性，也要时刻保持对社会变迁的警觉，这看似对立的两个趋向促使法律不断从传统土壤中萌发出勃勃生机。
Abstract: As pacing into the 7th year of the 21st century, the number of Chinese Internet uses has ranked second in the world. It is known that everything has two sides. At one side, the Internet technology is of great benefit to us, and at the other side, its adverse influences also come out gradually. In other words, under the mega-trend of Internet, the good is carried with the bad. For example, “NAKED CHAT”, as one of the many undesirable conducts on net, has aroused widespread concern. However, the nature of this conduct seems hard to be determined. Some people hold that it belongs to a kind of crime, while others just take it as an individual behavior. As a judicatory member, we should not only explore new judicatory problems, but also try our best to crack them. When we are confronted with some thorny issues in the judicatory practice, our responsibility is not only to settle a case, but also to think over and smooth away the deep-seated legal problems behind the case. In fact, working as above is not only a duty of a judge, but also a result obtained from a drive of judge’s sense of responsibility. Based on a representative case of “naked chat”, the author of the present dissertation analyzes the nature, the characteristics and the social harmfulness of this conduct and draws a conclusion that this conduct should be criminalized. At the same time, the author also brings out the solutions for the problem within the current law frame. The author believes that law should, as a discipline keeping in step with the times, not only maintain the stability of itself, but also exercise constant vigilance of social changes. It is these two trends seemed to be opposite to each other that spur law to produce vitality from traditional ground unceasingly.
关键字：裸聊 网络道德失范行为 网络犯罪 犯罪化
Key words: Naked chat，Moral incorrectness of network，Internet crime Criminalization