Criminal Law Protection Of Network Security

The rapid development of network and information technology is profoundly changing all aspects of our economic and social life.While promoting technological innovation,economic development,cultural prosperity and social progress,the network has also become the object,tool and space for various illegal and criminal activities.Faced with the increasingly high incidence and ever-changing cybercrime,China’s criminal law academic circles have given high attention and made in-depth research,but limited to the limitations of ideas and ideas,the vast majority of scholars are from the perspective of criminology to study the phenomenon and behavior of cybercrime,the lack of a standardized and systematic criminal law system from the perspective of criminal law.In the era of information network,due to the increasing conflict of network social relations and the continuous alienation of network illegal and criminal behaviors,the current legislative justice and traditional criminal law theories have shown a dilemma of insufficient regulation and response.This is largely related to the lack of basic theoretical research on cybercrime.Under the background of the further deepening development of network information technology,systematic research on criminal law protection of network security still has theoretical and practical value.Since the promulgation of 《Network Security Law of the People ’ s Republic of China 》 in 2016,the legal regulation and systematic research on cybercrime activities has entered a new stage.As the most important basic law in the field of network security,《Network security law》 has improved the legal protection system of network security,and also provided an institutional blueprint for the criminal law protection of network security.Based on this,this paper takes the legal interest of network security as the breakthrough point,and systematically examines the criminal regulation of network security crimes from a new perspective.By exploring the connotation scope of network security,analyzing the necessary limits of criminal law protection of network security,and establishing the normative connotation of network security crimes,this paper clarifies the main problems existing in criminal legislation and criminal justice of network security crimes.On this basis,this paper puts forward systematic countermeasures to the problems existing in the criminal regulation of cyber security crimes in China,in order to benefit the development of theory and practice.This paper is divided into introduction and text.According to the content layout,the text is mainly divided into the following five parts.The first chapter describes and analyzes the network development form,definition characteristics and network security concept,connotation and extension of basic problems.Network is not always there,but the product of social development to a certain stage.The network is a system composed of computers or other information terminals and related equipment that collects,stores,transmits,exchanges and processes information according to certain rules and procedures.The network has the characteristics of openness,interactivity,equality,digitalization and decentralization.Network security is the common value pursuit in the information network era.Security in the field of network means that the entity of network is in a state of no danger or no threat or infringement.Network security can be divided into narrow network security(Network security)and broad network security(Cyberspace security).Network security in a narrow sense refers to taking necessary measures to prevent attacks,intrusions,interference,destruction and illegal use of the network and accidents,to ensure the stable and reliable operation of the network system,so that the integrity,confidentiality and availability of network information are not threatened and infringed.Network security in narrow sense is mainly aimed at network operation security and network information security.Among them,network operation security mainly includes network hardware facilities and equipment security and network software operating system security;Network information security mainly includes network information data security and network information dissemination security.The generalized network security,in addition to the narrow sense of network security,also includes the security of network space.Cyberspace security means that the entire cyberspace environment is in a state of non-threat and infringement,and its scope covers the entire network field.It can be said that network space security determines the extension of network security.Network security,like national security and social public security,should become the legal interest protected by criminal law.The second chapter elaborates and analyzes the meaning and characteristics of criminal law protection of network security,the necessity and limitation of criminal law protection,and the conceptual connotation,constitutive requirements and scope types of crimes against network security from the perspective of criminal law.The basic meaning of the criminal law protection of network security is to achieve the protection of network security through criminal law,that is,to stipulate some serious acts that endanger network security as crimes,and to give them criminal sanctions.At the same time,according to the requirements of modesty of criminal law,the scope of criminal law strike is reasonably set.The characteristics of criminal law protection of network security mainly include the following three aspects : one is the singleness and duality of legal interests;2 is the specificity and limitation of the scope of protection;Three is the diversity and comprehensiveness of protection means.The necessity of network security criminal law protection is mainly reflected in two aspects : one is to deal with the objective needs of serious harm to network security behavior;On the other hand,it is a realistic choice to make up for the limitations of civil law and administrative law.Research on the limit of criminal law protection of network security is mainly to control the size of the crime circle and grasp the degree of criminalization.To grasp the limit of criminal law protection of network security,in addition to the need to examine the social harmfulness of behavior,we should also consider the principle of modesty of criminal law,the principle of punishment economy,the trend of legislation light punishment and other factors.To protect network security,it is necessary to crack down on all kinds of criminal acts that endanger network security.Generally speaking,the crime of endangering network security refers to the crime of violating the safety of network operation,information security and space security.According to the different connotation scope of network security,the crime of endangering network security can also be divided into narrow sense and broad sense.Crimes against cyber security are related to and different from cyber crime.Cybercrime belongs to the generalization of a kind of criminal phenomenon in the sense of criminology,and cybersecurity crime is the normative definition of cybersecurity behavior from the perspective of criminal law.This paper argues that the generalized crime of endangering network security is similar to the connotation and extension of network crime,which can be regarded as the concept of criminal law of network crime;The crime of endangering network security in a narrow sense,that is,the crime of endangering network security,is like the crime of endangering national security and the crime of endangering public security,which is a kind of crime in the sense of criminal law and has its specific scope of legal interest protection.The elements of crime against network security also include the object,objective,subject,subjective four aspects,compared with the traditional crime has both common and characteristics.The scope types of cyber security crimes can be divided into broad sense and narrow sense.The crime of endangering network security in narrow sense refers to the crime that the object(or main object)violated by the crime is the network security in narrow sense.It mainly includes two types :one is the crime endangering the safety of network operation;The other is crimes that endanger network information security.The crime of endangering network security in a broad sense refers to the crime that not only violates network security in a narrow sense,but also violates other social relations in cyberspace.It usually uses information network as a means,tool or space place to implement other acts that endanger national security,social and public interests and other legitimate rights and interests of citizens.In the third chapter,on the basis of defining the essential connotation of cyber security crime,the current criminal legislation in China is reviewed,and the legislative track,legislative trend and legislative defects of cyber security criminal law protection are expounded and analyzed.China’ s criminal legislation on cyber security crimes began in 1997 《 Criminal law 》,and then 《 Criminal Law Amendment(VII)》 expanded cyber security crimes for the first time.The formulation of 《Criminal Law Amendment(IX)》in 2015 shows that criminal legislation comprehensively regulates crimes against cyber security.So far,it has basically built a differentiated crime system against network security.The legislative trend of criminal law protection of network security shows three main trends.First,the objects to be protected in the field of network are constantly expanding,which is mainly manifested in the expanded protection of computer information system and the special protection of computer information system data.The second is that the legal interests to be protected in the network field are constantly pre-positioned,which is mainly reflected in the criminalization of network help behavior and the implementation of network preparatory behavior.Three is to strengthen the criminal responsibility of network service providers and network platform,mainly reflected in the establishment of criminal responsibility of network service providers and the strengthening of inaction obligations of network platform.Although China’s current criminal legislation against cyber security crime continues to improve,but there are still the following defects : First,the protection object imbalance.At present,the criminal law focuses on the protection of computer information systems and data,but lacks the protection of other network information data.2.Improper classification of charges.At present,the criminal law puts the unified crime of endangering network security in the section of ’crime of disturbing public order ’,which does not meet the classification standard of criminal law in China.3.Defects in charges setting.At present,the criminal law is too narrow or too wide to regulate the crime of illegal invasion of computer information system and the crime of destruction of computer information system.Four is the penalty configuration defects,mainly in some cyber security crime and traditional crime penalty differentiation is not obvious and the penalty configuration imbalance between charges.5 is the lack of coordination between legal norms,mainly in the crime of endangering network security and behavior types between the lack of coordination,there is a phenomenon of overlapping.The fourth chapter will focus on the field of criminal justice,investigation and analysis of the current situation and characteristics of the crime of endangering network security judicial interpretation,change trends and problems.In order to deal with the problem of legal application in the field of criminal justice against cybersecurity crimes,China has issued a total of 33 judicial interpretations of cybersecurity crimes since 2000.These crimes against network security judicial interpretation can be divided into two categories : one is specifically for the pure crimes against network security judicial interpretation;The other is the traditional crime involving network security judicial interpretation.The judicial interpretation of crimes against network security has the function of supplementing and leading criminal legislation.From the overall investigation of these judicial interpretations,it can be found that the changes and trends of judicial interpretations of crimes against network security are mainly in two aspects : on the one hand,the expansion of the constitutive elements of crime is obvious,including the expansion of the interpretation of the object of crime,the place of crime and the means of crime tools;On the other hand,the network transformation of crime quantitative standard is obvious,including the network transformation of quantity standard,amount standard and comprehensive evaluation standard.Judicial interpretation plays an important role in regulating crimes against network security,but it also brings the following problems.First,the relevant judicial interpretation has an impact on the principle of legality.If the pure rumor behavior is interpreted as libel,and the information network dissemination behavior is interpreted as reproduction and distribution behavior,there is a suspected violation of the legality.The second is the conflict between legal norms caused by relevant judicial interpretations.Such as some judicial interpretation and criminal law norms,there are conflicts between other judicial interpretations.Three is the judicial interpretation of the charges applicable pocket.Such as the crime of destroying computer information system and the crime of illegal business in the field of network have appeared the trend of pocket.The fifth chapter is the overall response to the problems existing in the current criminal law protection of network security,that is,to improve the concept of criminal law regulation,improve the interpretation function of criminal law,increase and change the criminal legislation norms,improve the conviction and sentencing standards and improve the regulation system of charges.The perfection of the concept of network security criminal law protection and regulation includes three aspects :First,we should adhere to the balance between fighting crime and protecting freedom,and safeguard freedom while fighting crime to promote the development of network society;Two is to promote criminal regulation and other means of collaborative protection,both with criminal law norms to build the bottom line of network security protection,but also with technology,ethical standards to build network security defense;Three is the regulation of network security crime should also implement the combination of leniency and strictness,the strict is strict,the wide is wide,to ensure that leniency and strict evidence,leniency and strict moderate.In order to solve the problems existing in the judicial interpretation of crimes against network security,it is necessary to correctly play the function of criminal law interpretation : on the one hand,it is necessary to accurately grasp the limit of expanding the interpretation of criminal law.The interpretation of criminal law should be based on the scope of legal interest protection at the macro level,and should be based on the criteria of ’ the possible meaning of legal terms ’ and ’ the prediction possibility of ordinary people ’ at the micro level.On the other hand,the judicial interpretation should be reasonably reinterpreted.It is necessary to reinterpret the uncertain concept,lagging content and flaw loopholes in judicial interpretation,so as to make it more operational.The increase and revision of the legislative norms of network security criminal law should be guided by the principle of legal interest protection and establish an active and rational overall strategy.On the one hand,criminal law networks should be tightened and related charges added.Such as adding charges in the field of network key information infrastructure,network product service security,network data security,highlighting the protection of new legal interests in key areas of network security;On the other hand,it is necessary to improve the transformation of existing criminal law norms.For example,the crime of information dissemination and the legal punishment are reformed to maximize its function.The improvement of conviction and sentencing standards for crimes against network security is to build a scientific and reasonable conviction and sentencing evaluation system adapted to the network era.On the one hand,the traditional quantitative and quantitative evaluation standards should be appropriately expanded and networked,and the conviction and sentencing standards with network characteristics should be constructed.On the other hand,in order to accurately evaluate the social harmfulness of network security crime,we should evolve from single standard to complex standard,and construct systematic conviction and sentencing standards.The perfection of network security criminal law protection charges system mainly solves the problem of legislation mode and charges classification of network security crimes.At present,the legislative mode of network security crime mainly has the dispute of independent mode and integration mode.This paper argues that the crime of endangering network security should be set up a special chapter to regulate it,namely the use of independent chapter-type legislative model.The classification of crimes against network security should be based on the object(legal interest)violated by the system of distinction.The crime of endangering network security,which mainly violates the traditional legal interests,is classified into the traditional criminal law chapter,and the crime of endangering network security,which mainly violates the legal interests of network operation security and network information security,is classified into the independent chapter,so as to construct a scientific and reasonable crime regulation system.