Research Into Criminal Regulation Of Network Relevant Crimes

With the rapid development of network technology and applications, network hasgradually changed from sophisticated to quite easy to use, and has become anindispensable part of life. Using network makes life easier, which can also shorten thedistances, expand areas of life, and bring happiness. However, network technology isalso used in crimes, and enlarges the effects of crimes.Nowadays, the advantages of network technology have been recognized by theworld, and network will be one of the important areas to be explored in future.However, various types of behaviors involving cybercrime are also emerging andinnovating, which do serious harm to personal interests and social orders, and setobstacles to the benign development of network technology. If unable to resolve abuseor malicious use of network technology within ranges of law and moral, suchbehaviors will seriously affect the development of technology, and even sentence it to"die".New network technologies, platforms, marketing ideas, new insights to network,and increase of Internet users, have contribute to the rapid expansion of scales ofbehaviors involving cybercrime. Although nowadays all kinds of behaviors involvingnetwork have received massive attention to the society, and many scholars have alsobeen conducting some researches, but these researches show the tends to focus on civil and administrative areas; even if in areas of criminal law but only focus on theft,online gambling, Internet pornography crimes, without new types of harmfulbehaviors involving network.In legislative and judicial level, various legislative interpretations and judicialinterpretations on the so-called “cybercrime” are introduced. However, theinterpretations are general and give no precise definition of “cybercrime”. Besides, thefocus is on traditional crimes carried out through network. They also deem that thereare minor differences between “cybercrime” and traditional crime, and the differencesare involvement of network in crimes, conviction standard, and determination onnature. Apparently, such legislative interpretations and judicial interpretations fail toconnect with relevant network harmful behaviors that draw wide attention, and cannotbe regard as basis for studying and determining legal or illegal, crime or not crime fornetwork relevant crimes.In effect, some network dangerous behaviors have become research focus of civillaw and administrative law. However, criminal law research does not attach enoughimportance to it, or just to the surface (if any), without analyzing its nature or features.It has become very urgent and very valuable to conduct in-depth thinking andstudying on these behaviors. The research shall focus on judging crime or not crime,this crime or that crime, and whether it should be treated as crime in legislation.Chapter1of this article is an introduction of network relevant crimes. Currently,the academia begins to pay attention to the impact of network on crimes, and putforward the concept of “cybercrime”. However, since its definition is quietcontroversial and the standard unclear, many crimes can be referred to as“cybercrime”, resulting limited research significance. The most important thing to donow is not to name the criminal behaviors involved in network and show our care.Instead, the focus should be on how to distinguish traditional crimes from crimes thatis distinctively different from traditional crimes due of the involvement of network,and how to tell a new crime is cybercrime. When study about the influence of networkon crime, it is necessary to focus on the degree of involvement and influence ofnetwork in criminal behaviors, and then make corresponding standard. Thus we can tell cybercrime from traditional crimes which nature remains unchanged despite ofnetwork involvement. Therefore, it’s necessary to put forward the concept of“network relevant crimes”. Network relevant crimes refer to crimes that network isused substantively to commit and which can’t be done through traditional approach,such as abuse of deep linking, and circumvention tools, or crimes that are distinctivelydifferent from traditional crimes in behavior characteristics, harmful consequencesand other aspects, such as cyber manhunt and internet ghostwriter. They bring greatimpact on traditional concepts and current concept of crimes, and should be classifiedas “network relevant crimes”. For crimes done on internet platform yet the criminalbehavior characteristics are not distinctively different from traditional crimes, such asnetwork casino, online pornography and internet finance crimes, they don’t belong to“network relevant crimes”. From the perspective of legislation, since1994,cyber-crimes have been mentioned in relevant laws, regulations, legislativeinterpretation and judicial interpretations. Provisions issued before2000demonstrateda common feature: they all regulated network factors, but the concept remainedambiguous and the scope general, with no specific provisions on punishment fittingthe crimes and demonstrating no network characteristics. Provisions issued after2001feature specific provisions on punishment fitting the crimes and the scope of behavioris broadened. From the perspective of judicial, judicial departments attachesincreasingly greater significance to cybercrime, although from the typical casespublished from relevant department, one can see that the concept of cybercrimeremains ambiguous and its scope tends to expand infinitely. Besides, the judicialdepartments organize various relevant trainings and researches, and set upprofessional organizations to handle such cases so as to deal with cybercrime.Internationally, legislations of the United States, Germany, Britain and other countries,as well as Cyber-crime Convention of Council of Europe all involve cybercrime, yetthe concept is ambiguous and scope to wide. Overall, both legislation and judicialbegin to pay more attention to the special influence of network on crimes, and arecloser to “network relevant crimes”. In Chapter2, we will study criminal regulations of cyber manhunt. Cybermanhunt in narrow sense refers to an information search approach that utilizesparticipation of internet users to search for certain relevant persons involved in someinterested points in real world, and search for, filter, and publish relevant informationabout the persons and events. It is widely criticized. In narrow sense,"man" in themanhunt concept means on the one hand that the subject of hunting and informationprovision, screening and spreading are human beings, but the hunting object are alsohuman beings. Its whole process can be divided into induction stage, search stage,publishing stage and extending stage. Cyber manhunt has both positive and negativeeffect. Lawsuit about cyber manhunt reflects right conflicts behind cyber manhunt.There is controversy on whether cyber manhunt should be listed into criminal law ornot. It is about whether specific legislation and accusation should be set up, instead ofcrime or not crime. China’s criminal law has set up corresponding accusations onaccompanying hazards of cyber manhunt. No separate accusation is set up and thecurrent criminal law has to be improved, such as broadening the scope of personalinformation crime criminals, determining content of personal information, anddiscriminating natures of personal information with different subjects; improvingidentification standard of criminal behavior approach; and adopting “focus on privateprosecution and supplemented by public prosecution” prosecution approach.In Chapter3, we will study criminal regulations of internet ghostwriter. With theappearing of network marketing, internet ghostwriter emerges and expands rapidly.Internet ghostwriters refer to a certain group of people who undertake specific tasks orplan on internet hype to achieve specific goals. They are harmful to real social orders,such as doing harm to others’ right of personality and reputation and controllingdiscourse hegemony; they are also harmful to social orders in virtual society, leadingto distortion of network consensus, damaging virtual society environment, andinfringing virtual reputation. Internet ghostwriters organizations are large scaled andfeature collectivize management. From behavior pattern, the four major tasks ofinternet ghostwriters are creating topics, marketing, malicious demeaning, andmalicious acts of sedition. From legislative status quo, enough significance is not attached to protection of virtual social order and we should separate it from real socialorder. Internet ghostwriters of insult and libel actions constituting a crime shall beconvicted and sentenced as crime of insult and libel with no need to establish a newcrime while the criminal subject should consider including task delegators, internetghostwriter organizers and specific ghostwriters that enforce the concrete actions andmeet serious violations. Ghostwriters engaged in insult and libel of online virtueidentities shall be considered as a crime of insult and libel not fulfilled; however, theabove insult and libel shall be considered constituting a crime of insult and libelfulfilled if the target’s identity is exposed with the cross-intervention of cybermanhunt. Ghostwriters’ actions of making topics etc. do not constitute the social harmin the sense of criminal law and shall not be considered a crime. Behaviors hiringghostwriters for recessive propaganda voting interference are currently not suitable tobe set as a crime. For ghostwriters’ malicious negative evaluation, they and the taskdelegators shall be investigated for criminal liabilities based on the crime of damagingbusiness reputation and product reputation. For ghostwriters’ malicious incitement,it’s suggested a crime of disturbing virtual social order be added to Article1of theCriminal Law by way of legislation and the organizers, i.e. task delegators andghostwriter organizers shall be punished. Actions endangering national unity ornational security shall be convicted and punished respectively by the crime ofprovoking secession or subversion and ghostwriters enforcing concrete actions shallbe investigated.Chapter4studies the criminal regulation on the abuse of deep-linking. Deep-linkgenerally refers to links that jumps directly to the desired page by crossing the linkedhome page instead of going first to the home page. With the development ofdeep-linking technology, the ones that are currently in the focus of controversy inpractice are those technologies that can allow users to browse the linked webpagewithout being separated from the original website page. Deep-linking technologiescan evade or circumvent the home page of linked website, making websites using thistechnology create a confusingly false impression that the content displayed is thecontent of the site itself. In the civil field, the main controversy around deep-linking technology is whether actions of using this link technology to display web contentqualify the plagiarism in the copyright field, or whether such actions may constitute adirect infringement (user perception standard) or indirect infringement (serverstandard). The confrontation between both sides is so intense that results in differentdecisions in real practice. However, after years of confrontation, the server standardstandpoint has now gradually gained the upper hand. Likewise, a unified standard alsogradually develops in judicial practice and the mainstream defines the behavior ofabusing deep-linking technology to set links for infringing works as indirectinfringement while the links set for legitimate work shall not constitute infringement.Behaviors constituting indirect infringement shall be identified as a violation ofinformation network dissemination proprietary rights in the scope of copyright. In thecriminal field, it’s possible that actions of deep-linking technology abuse causingserious social harm be listed as a criminal crime, which is quite necessary consideringfrom the international events caused by the abuse of deep-linking technologies incurrent practice. Condemning actions of deep-linking technology abuse to criminalpunishment will not result in an inversion between the civil and criminal liability, oran inversion of the determination criterion. The criminal punishment on deep-linkingtechnology abuse shall not rigidly adhere to the user perception standard, becauseusing network for information dissemination, regardless how the content is displayedto users, will anyway achieve the purpose of information passing and passing the keynovel points to users. Currently, deep-linking technology abuse behaviors cannot beconvicted and punished according to Article217or Article218of the Criminal Lawof the People’s Republic of China. Proper amendment shall be made to the criminallaw and related charges shall be added.Chapter5studies the criminal regulations on the usage of network circumventiontools. Network circumvention means the direct or indirect application of networktechniques to gain access to websites shielded by national firewalls and to browseforeign websites. China’s firewalls for internet censorship monitor, filer, delete, blockor even shut down certain website and website content, and this will inevitably lead toa limited internet access or expression, resulting in various circumvention techniques and actions. GFW adopts a blacklist system where only websites and contents in thelist are blocked, making circumvention kinds of feasible. Most netizens usecircumvention tools only for a “normal” network access and many websites areblocked “by accident”. Network circumvention proves to be somewhat valuable as tomeet netizens’ internet access needs, increase their information content, provide morechannels for expression and expand the horizon. However, it also brings some hazards.For example, some circumvention software contain viruses and Trojan horses or areinvolved in some political background, and worse still, some netizens maliciously usecircumvention tools visit, browse and publish information relating to national defenseand public security, aiming to inspire racial hatred and religious hatred and conductother illegal or criminals actions. According to China’s criminal law, a crime ofdestroying computer information system may be convicted on those who conductsother computer information system destructive actions while installing circumventionsoftware on other peoples’ computers or public computers and those who knowcircumvention tools contain computer virus and other destructive programs and endsup affecting the normal computer system operation; however, the behavior of usingcircumvention software for browsing and research purposes shall not identified as acrime. For network circumvention service providers, the provision of circumventionservice alone shall not be criminalized while the related crimes possible during thecourse of service shall be identified. Citizens have the right to surf the internet and it’sa constitutional right. Their behaviors are legitimate and shall not be convicted beforeconducting actions in breach of the criminal law.Chapter6studies several issues involved in network relevant crimes and thecountermeasures. The crime subject of network relevant crimes is the general subjectand whether a crime is constituted by the unit cannot be generalized. Researches incircumstances where network relevant crimes are engaged upon individuals betweenthe age of14and16should be strengthened in the ought-to-be perspective rather thanblindly denying its responsibility. The criminal legislation perfection for networkrelevant crimes should take the form of amendments of the criminal law and take adifferent correction mode for different behavioral characteristics. A separate legislation should be made to newly engaged areas. In addition, solid efforts should bemade to strengthen the technical means of prevention, further clarify the cybercrimejurisdiction, explore the setting and application of “network forbiddance punishment”and solidify anti-network relevant crimes publicity.With the constant evolution and development of network relevant crimes, therebecome more kinds of behaviors than mentioned above. In this thesis, some currentvery typical behaviors were researched mainly, in order that proposals on how toreasonably regulate network relevant crimes, and expecting the network environmentwill be purified and optimized, to make network another paradise.