计算机犯罪与现行中国法律.doc

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1、Computer Crimes and Current Chinese LawsYuan JIAAbstractComputer and cyber crimes are really different from traditional crimes. They bring great impact to investigation and prosecution. Gaps between the new kind of crime and existing laws are formed on several aspects including imputation, jurisdict

2、ion and evidence-taking. How to prosecute the emerging criminal offenses? Which laws and articles can work? All of those questions will be discussed in this article.IntroductionFrom the first time that the computer and the Internet walked into our society up to now, they have changed our life a lot.

3、 As two of the most influential inventions, they have been enriching the world and making it to be developed faster and faster. However, challenges and risks also come forth at the same time, especially on laws. The fact is always that the science and technology runs so fast while the law falls behi

4、nd and strives to keep step with them to protect peoples rights, to balance benefits of different parties and to harmonize the development of the society. Therefore, the disparity is always there, so does the gap between investigation as well as prosecution and computer/cyber crimes.In this article,

5、 I will first discuss the impact of computer and cyber crimes to existing Chinese laws related to investigation and prosecution, then move on to some Chinese laws which can be used to prosecute emerging computer and cyber crimes on the basis of the US laws as benchmarks.Gaps between Chinese laws and

6、 computer/cyber crimesTo computer and cyber crimes, the PRC Criminal Law and the PRC Criminal Procedure Law can be functional to a certain extent. Other relevant laws and regulations, such as “Peoples Police Law of the PRC”, “Working Rules on Interim Regulation of International Networking of Compute

7、r Information Network” and “Regulations on Internet Surfer Service Sites”, provide some supplements to make the investigation and prosecution easier. All of those laws do enable the investigation and prosecution of computer and cyber crimes to some degree; however, because of the particularity of co

8、mputer and cyber crimes, present laws cant meet the requirement of investigation and prosecution thoroughly. There are still questions that need to be solved. Ambiguous imputationMost of the provisions of the current criminal law aim at what happen in the real world instead of incidents happen in th

9、e cyber world. Only a little of provisions, that is from Article 285 to 287, are specific to computer and cyber crimes. Hence, when a certain criminal case takes place, which imputation can be used for the prosecution becomes ambiguous. Besides of the offense provided in the above Articles, many oth

10、er common commission of crimes, for example, exploiting the computer and network to steal or extort computer service, software and data or intentionally destroy computer devices, are hardly possible to be prosecuted by provision specific to computer and cyber crimes. Although they are able to be arg

11、ued by relevant articles, such as theft (Article 269), extortion (Article 274) and intentional destruction of public and private property (Article 275), it is not as good as prosecution in accordance with direct provisions, since the pertinence is relatively weak.One particularity of computer and cy

12、ber crimes is “lower ages of criminals”. Chinese Criminal Law, Article 17 provides that the person who is older than 14 yrs old but younger than 16 yrs old “shall bear criminal responsibility” of such acts, which are “intentionally killing another or intentionally injuring another”, “rape, robbery,

13、drug trafficking, arson, explosion and poisoning”. Obviously, computer and cyber crimes are not included, which means, criminals under sixteen years old cant be prosecuted. However, the ages of computer and cyber criminals become lower and lower and sometimes they may cause huge damage and lost. Tha

14、t seems a potential danger to the public security. Ambiguous jurisdictionCyber space is a virtual digital space. Its different from any original concept of space and doesnt belong to any kind of territory described in laws, which are “territorial land”, “territorial waters”, “territorial airspace” o

15、r “fictional parts of territory”. Besides, cyber space is constructed by a number of physical equipments. The hosts and servers are possible to be spread at any place. Moreover, cyber space can be accessed from almost anywhere connected to the Internet. Therefore, the jurisdiction of computer and cy

16、ber crimes are ambiguous. We have five general principles that can be used to determine jurisdictions for commission of a crime. But when face to cyber space, those principles dont work well. Where does an affair happen? Where does it take effect? When linked with the Internet, those questions get t

17、o be difficult to answer and therefore, which country has jurisdiction is difficult to determine. Ambiguous trail and evidence-takingFirst, computer and cyber crimes belong to a sort of hi-tech crime. The criminal masters computer technology, so it is easy for them to hide their trail and destroy ev

18、idences, which reflects the feature of anti-investigation of computer and cyber crimes. Traditional reconnaissance of the criminal scene and evidence collection methods are hard to be implemented in the virtual space. Second, the computer has strong operational capability. It enables that crimes can

19、 be committed in a short period of time. Hence they are difficult to be supervised. Third, to almost every computer and cyber crime, when and where the crime happens and takes effect are separated, which makes it harder for investigators to find valuable clues and arrest criminals at the criminal sc

20、ene. Fourth, the evidence is always stored as “0”s or “1”s in electromagnetic media. Its easy to be tampered and damaged. Those vulnerabilities make the trail and evidence-taking of computer and cyber crimes ambiguous.Capable laws to prosecute computer/cyber crimesIn order to cope with computer and

21、cyber crimes, the US has enacted relevant federal laws to restrict unlawful online conduct. Examining equivalent Chinese laws, it can be seen that though applicable provisions existing, they arent enough and comprehensive.Unlawful ConductApplicable LawsExplanationDenial of service attacksPRC Crimina

22、l Law, Article 286, “deletes, alters, adds, and interferes in computer information systems, causing abnormal operations of the systems”It can be regarded as “interference” to computer and network systems that make their operations abnormal, that is, denial of service.Substitution or redirection of a

23、 websitePRC Criminal Law, Article 285, “intrudes into computer systems”.The target website of the client isnt the substituted website, so it can be regarded as access without authorization to that one.PRC Criminal Law, Article 286, “deletes, alters, adds, and interferes in computer information syste

24、ms, causing abnormal operations of the systems”In order to redirect a website, the criminal has to “alter” the computer and network systems to make their operation abnormal.Use of misleading domain nameThere is no applicable law.Although there are some administrative measures, there isnt relevant la

25、w in China until now.ExtortionPRC Criminal Law, Article 274, “extorts public or private property”.It can be argued that the extortion is carried out by exploiting computers and networks.Internet fraud (e.g. auction fraud or “phishing”)PRC Criminal Law, Article 287, “uses a computer for financial fra

26、ud”.This article is clearly specific to “financial fraud” of computer crimes.PRC Advertising Law, Article 38False advertising is also a form of Internet fraud.Credit card fraudPRC Criminal Law, Article 196, “fraudulent activities with a credit card”.Criminals may exploit computers to carry out fraud

27、ulent activities when conducting transactions on the Internet, such as online banks or online shopping. No matter where the crime happens, the fact of offense is same.Password fraudThere is no applicable law.Current laws pay much attention on “financial fraud”. Other forms of fraud are necessary to

28、be supplemented.Child pornography, child luring, and related activitiesPRC Criminal Law, Article 364, “broadcasting or showing obscene materials to minors under 18 years of age are to be severely punished”.Using computers and the Internet to broadcast or show obscene materials to minors belongs to c

29、hild pornography.ObscenityPRC Criminal Law, Article 363, 364, “producing, reproducing, publishing, selling, or disseminating obscene materials”, “disseminating obscene books, magazines, films, audio or video products, pictures, or other kinds of obscene materials”.Obscene works are possible to be pr

30、oduced, reproduced by computers and published, sold or disseminated on the Internet. No matter what the form and method are, the unlawful conduct is forbidden by the law.Sale of prescription drugs and controlled substancesPRC Criminal Law, Article 141, 142, “sells fake medicines”, “sells inferior me

31、dicines”.Drugs sold online may also have quality issues.PRC Criminal Law, Article 143, 144, “sells foods that do not conform to hygienic standards”, “sells foods that are mixed with poisonous or harmful non-food materials or knowingly sells such things”.Foods sold online may also have quality issues

32、.PRC Criminal Law, Article 148, “Production of cosmetics that fails to meet hygienic standards or knowingly selling such cosmetics”.Cosmetics sold online may also have quality issues.Drug Administration Law of the PRC, Article 9, 15, 29, 48-55, 58.Sale of drugs online must comply with the management

33、 of pricing, advertisement as well as supervision of drugs, too.PRC Pricing Law, Article 28.This article provides supervision of drug pricing, which also includes trade online.Sale of firearmsPRC Criminal Law, Article 151, “Smuggling arms, ammunitions”.Computers and the Internet can be auxiliary too

34、ls to smuggle firearms.GamblingPRC Criminal Law, Article 303, “gathers people to engage in gambling”.This article doesnt restrict whether the unlawful conduct happens in the real world or on online.Sale of alcoholNot a violation of lawIf the alcohol sold is without quality issues, then the conduct i

35、s legal.Securities fraudPRC Criminal Law, Article 178, “forges” “other negotiable securities issued by the state”.Forging securities by computers may be argued by this article.PRC Criminal Law, Article 181, “fabricating or disseminating false information that could have an effect on securities tradi

36、ng”.Using computers and the Internet to disseminate false information about securities also belongs to securities fraud.Piracy and intellectual property theftPRC Criminal Law, Article 215, “forges or without authorization of another makes representations of the persons registered trademarks”.Forging

37、, making or using ones trademark without its permission on the Internet is also a kind of trademark infringement.PRC Trademark LawPRC Criminal Law, Article 216, “counterfeits the patent”.Online patent infringement is also a kind of patent infringement, which is not different from the infringement th

38、at happens in the physical world.PRC Patent LawPRC Criminal Law, Article 217, “copyright infringement”:“(1)copy and distribute written, musical, movie, televised, and video works; computer software; and other works without the permission oftheir copyrighters;(2) publish books whose copyrights are ex

39、clusively owned by others;(3) duplicate and distribute audiovisual works without the permission of their producers”. All of the infringement described here are available online. Digital works also have copyright and digital works may infringe copyright, too. They should be treated as paper works. Th

40、e laws dont exclude works produced by computers and published on the Internet, so the laws will work in online copyright infringement cases.PRC Copyright LawPRC Criminal Law, Article 219, “encroaches upon commercial secrets”.This article provides that “theft” and “disclose” “a rightful owners commer

41、cial secrets” are illegal, which doesnt exclude implementation of those acts exploiting computers and networks.PRC Anti-unfair Competition Law, Article 10.Trade secrets/ economic espionagePRC Criminal Law, Article 219, “encroaches upon commercial secrets”.The same as the above.PRC Anti-unfair Compet

42、ition Law, Article 10.Electronic threatsPRC Criminal Law, Article 157, 202, 226, 242, 256, 277, 294, 306, 307, 333.Electronic threat is a new kind of threat. Which law should be used depends on the purpose of the thread.Electronic harassmentThere is no direct applicable law.Emerging privacy laws may

43、 be helpful.Interception of electronic communicationsPRC Criminal Law, Article 285, “intrudes into computer systems”.Illegal access to computer systems may be a procedure for interception.CyberstalkingThere is no direct applicable law.Emerging privacy laws may be helpful.EspionagePRC Criminal Law, A

44、rticle 110, “espionage and endangers national security”.The criminal can assign missions and carry out espionage exploiting computers and networks. Computers, networks and related systems or devices can be tools or attack target of espionage.PRC Criminal Law, Article 111, “steals, secretly gathers,

45、purchases, or illegally provides state secrets or intelligence”.The acts described in this article can be regarded as espionages. If the criminal exploits computers and networks to implement those acts, then the computer and cyber crimes can be argued by this article.Hate crimesPRC Criminal Law, Art

46、icle 276, “destroys machinery or equipment” for “seeking revenge”.Computers or related devices may be the “machinery or equipment” destroyed by reason of hate. However, if computer systems are destroyed, it will not effective though the lost may be larger.Libel/slanderPRC Criminal Law, Article 246,

47、“fabricating stories to slander others”That can be available online now. The criminal may produce “fabricating stories” by computer and “slander others” on the Internet. If circumstances are serious, this article works.Posting personal information on a website (e.g. phone numbers, addresses)There is

48、 no direct applicable law.Emerging privacy laws may be helpful.Invasion of privacyPRC Criminal Law, Article 285, “intrudes into computer systems”.The computer system here can refer to ones private computer system. Then, the illegal access to it is invasion of privacy.Disclosure of private informationThere is no direct applicable law.Emerging privacy laws may be helpful.SpamThere is no applicable law.Email related legislation is still blank in China.Spoofing email addressThere is no applicable law.ConclusionAlthough current Chinese laws can enable the investigation and prosec