On Manufacture, Disseminate Computer Virus And So On Destructive Procedure Crime

Along with the universalization and socialization of the computer in the world, the computer information system and the computer network have gradually become the prop of each national's politics, the economic ,the military, technical and other kind of social activity. Accompanies with this, the computer-related crime in various trades and occupations massive occurrences, specially manufacture, disseminate computer virus and so on destructive procedure crime, it has the hiding strongly, the crime method new, the social hazardous nature is big and so on. It seriously influences social order, and threats economy development, affects social stability, even endangers the safe of the country, become a major issue which each country has to face. This article is divided into three parts, on the related questions of establish manufacture, disseminate computer virus and so on destructive procedure crime in our countryFirst, our country's related legislation on manufacture, disseminate computer virus and so on destructive procedure crime. Our country Criminal law" has stipulated disseminate the computer related criminality, they're 285th, 286th and 287th, and they're classified into the sixth chapter "hindrance social management order crime". The 286th article's third section stipulation that, "Intentionally manufacture, dissemination computer virus and so on destructive procedure, affects the computer system's normal operation, caused serious consequence, punished according to the first section ", that's "the destruction computer information system crime" .This object of the crime is the country's computer information system and all people and validated user's legitimate rights and interests in the computer information system. However, computer virus and so on destructive procedure has strongly generation mechanism and the dissemination hiding, invisible and the with difficulty guard. Along with the increasing dependence of computer in society, the social hazardous of manufacture, dissemination computer virus and so on destructive procedure is more huge or said inestimable, more and more will harm the public security in nature, so it's insufficient to classify it into the "hindrance social management order crime".The objective aspect of this crime displays for violating the country to stipulate , implementation the following behaviors: (1) carries on the deletion , the revision, the increase, the disturbance to the computer information system function; (2) saves, processing, the transmission data and the application procedure to the computer information system in carries on the deletion, the revision, the increase operation; (3)intentionally manufactures, dissemination computer virus and so on destructive procedure, affects the computer system normal operation , the consequence is serious. This crime must cause some results, namely has created some serious consequence which destroyed the computer information system, only then constructs the crime. But sometimes computer virus and so on destructive procedure not necessarily don't cause immediately destruction to the system, the article indicates cannot accurately show its social hazardous nature. Moreover this crime only has the result condition, but does not have the preparation, attempted and stops condition, obviously it is unreasonable.The subject of this crime is the general subject, and the unit is not the subject of this crime. But from the cases happened, the subject of this crime obviously presents the low age tendency, moreover it is not rare in the practice that unit commit this kind of crime.The subjective aspect of this crime is intentionally, the error does not construct the crime. But whether the behavior person disseminates the computer virus is intentionally or not is very difficult to recognize. Because we are unable to prove whether the behavior person know the procedure in the system has virus or not, also it's unable to explain he does on intentional or not to carry the dissemination .The legislation's imperfectly created confusion to the judicial, urges us to consider hypothesis independent manufacture, dissemination computer virus and so on destructive procedure crime.Secondly, on the necessity to hypothesis manufacture, dissemination computer virus and so on destructive procedure crime.The third section of 286th article: manufacture, dissemination computer virus and so on destructive procedure behavior is different from the first and second section in the crime object, crime method, establishment crime premise as well as social hazardous etc. It's not scientific to put manufacture, dissemination computer virus and so on destructive procedure behavior into "the destruction computer information system crime" section, it can not fully display the charge's function.From the present situation of international and domestic manufacture, dissemination virus and so on destructive procedure crime, we an see that it has the enormous social hazardous nature, has brought the inestimable loss for the various countries, also is serious day by day . Therefore many countries start to aim at this crime one after another to carry on the legislation consummation. For example Russia performs its stipulation for the independent charge to stipulate, France had stipulated the unit may be the subject of each kind of computer-related crime, and has stipulated the property punishment and the qualifications punishment and so on.In summary, it's necessary for us to learn the overseas legislations, establish independent manufacture, dissemination computer virus and so on destructive procedure crime.Thirdly, some ponders on hypothesis manufacture, dissemination computer virus and so on destructive procedure crime.About this crime object, the computer application domain is more and more widespread, the computer information system security also is one kind of public security, manufacture, dissemination computer virus and so on destructive procedure crime has the extremely serious social hazardous nature, includes manufacture, dissemination computer virus and so on destructive procedure crime computer-related crime transfers to the harm public security crime chapter, can manifest the protect computer space security of the legislation's goal ,simultaneously may solve the penalty problem of computer-related crime.About objective aspect of this crime, computer virus and so on destructive procedure has the multiplicity, some virus and so on destructive procedure has the ambush and may be activation, its latent hazardous nature is extremely huge, this kind of crime has the characteristic which the behavior violates. At present the criminal law's stipulation has disadvantageous to the computer system security protection.Therefore the author suggested this indictment revision should be as follows:" Intentionally manufactures, dissemination computer virus and so on destructive procedure and its input computer system, sufficiently affects the computer system normal operation, place... Creates the serious consequence, place... Creates the special serious consequence, place... "About the subject of this crime, manufactures, dissemination computer virus and so on destructive procedure crime presents the obvious low age tendency ,it is necessary to stipulate the subject who is between 14 years old and 16 years old commit this crime also to take the legal responsibility from the criminal law objective, this crime social hazardous nature, and the goal of the criminal law to stipulate the legal responsibility age , and additionally stipulate the unit for this crime subject. About this crime subjective aspect, in the computer-related crime, certainly it's not necessary for the behavior person to have clear understanding of its behavior consequence, so long as the behavior person as a careful computer system user, must know certain behaviors are not allowed to do, as well as certain behaviors have the logarithm possibility according to carry on the destructions, then we may think the behavior person has the foresight to its behavior consequence. But certainly we do not need the behavior person to have the experience to its operation to cause the big social harm, to have clear understanding of the big damage to the computer information system. And in creates the serious consequence because of the error in the situation, also should give certain penalty punishment.About this crime legal punishment, the penalty in our country's criminal law at present to this crime does not match its social hazardous nature, has not manifested the principle that the responsibility for an offense punishment should match each other, it is necessary to enhance its legal punishment, and increase property punishment.The author suggests that we may amendment it by the criminal law bill or by the legislature, the judicial or the judicial interpretation way, to perfect the related rules.