The Research For Malicious Software Tort

malicious software is another disharmonious thing for network damage following computer virus. The malicious software is expanding rapidly because we are short of the law in our country to restrict it, together with the huge commercial interests. It bring tremendous damage to many computer users not knowing facts so the league against rogue software organized with many netizens lodges a complaint to makers, operators and promulgator in many cities including Beijing Shanghai and Tianjin. The Beijing's Haidian district court accepted the first litigation officially on September 4th, 2006. Although court accepted the civilian demands, it will bring embarrassment to court and computer users because of the short of the relative laws.The litigation from the malicious software is causing widespread concern, we should do further discussion about : what is malicious software? Whether it can form tort or not? Which responsibility shout it take ? and so on . Now, we haven't many words for reference in legal circles an other academes. The paper will discuss theses issues about malicious software to arose further study in academe to perfect relative law eventually so that we can ensure that the science and technology can develop healthily and safeguard the party's legitimate rights and interests.The paper is made up of three parts.The first part puts emphasis on the signification of malicious software. Then, it analyses malicious software's conception and features. The writer thinks it belongs to a kind of special tort on the basis of its particularity. At last, the writer summarized and generalized its types and forms.The second part has been expanded from the imputation principle of malicious software. The writer demonstrates detailedly that the malicious software should apply to fault liability ----the principle of presumption of fault followed the doubt of which kind of imputation that should belong to.The third part has been expanded about tort's elements based on the imputation principles. Firstly, it amylases the difficulties in proof and lack of legal basis existed in practice. Secondly , it clears up the relationship between imputation principle and elements. Thirdly, it demonstrates the judgment factors of malicious software's elements based on the fault, offense, facts damage and causal relationship. Finally, analyses and summarize the subject for the malicious software's tort liability based on the subject for tort.