Improvement Of Cyber Crime Legislation

Network crime is the computer technology develops the network communication time, comes by the computer-related crime development, and follows the Internet the development to be in flood.Not only its infringement is the network user use network resources legitimate benefit, moreover also encroaches upon the network user the property rights, the intellectual property rights and so on many social management order and the market economy order, even also harms the national security and the security, social. The author from the basic unit judicature worker's angle which wages the struggle with the network crime, attacks the network crime take present our country the present situation as the starting point, practices the question in order to the public security network supervision department which in the work discovered,divided three parts to elaborate consummation of our country network crime criminal activity legislation.The first part, the author mainly elaborated our country network crime present situation and faces stern situation. First, introduced the network crime concept and the characteristic. From explained any is the computer-related crime starts, by is connected said, the tool said, the object said, the data said, the system safety mediates dually said and so on the multi-theories introduced the computer-related crime each kind of manifestation, and has carried on the analysis dissection to various theories, gives computer-related crime concept which the critique accepts dually said. Afterwards, to the network crime which came by the computer-related crime development has carried on the limits. From mainland legal system to network crime understanding and European Council through "about Network Crime Joint pledge", is clear about the network crime is"the harm computer system, the network and the data secrecy, the integrity and the usability, as well as abuses these systems, the network and the data behavior", and points out its related characteristic. In this foundation, has made the detailed elaboration to our country network crime legislation present situation, namely take "Criminal law" 285th, 286th and "Criminal law" 287th and the correlation judicial interpretation to involves the computer, the network as the primary coverage computer information system crime carries on the criminality processing. Next, the author the network crime situation has carried on the description at present on our country. On the one hand Luo lists the current network crime main manifestation, pointed out prominently take the network attack, the network dissemination as the fundamental mode severely impair public and the social order network criminality is now the network crime main form; On the other hand has carried on the thorough analysis on our country Internet development present situation and the future trend of development, proposed our country is facing the network crime serious threat and the stern challenge, the network crime legislation should consummate as soon as possible.The second part, the author mainly briefed our country network crime criminal activity legislation flaw. First, object obtaining which encroaches from the network crime, proposed explicitly the current research network crime object is also in to the computer-related crime research object in, the main minute said generally, the narrow sense mediates compromised says three kinds. Its main question is too is broad to the criminal object research or general, lacks to the direct object in-depth understanding. As a result of the understanding insufficiency, the legal relationship which the network crime legislation protects also corresponding receives the limitation, mainly displays in on the legislation protection computer information system object only has several kinds, namely affair of state, economic development, national defense development, frontier science technology and so on important domain computer information system. At the same time , extremely is also disadvantageous to the cyberspace cyberspace order maintenance. Not only next, in the network crime charge hypothesis, the existing network crime the charge establishes few, insufficiently detailed standard; Moreover mostly the charge stresses on the network crime process tool, practices operationally small. Once more, in the network crime stopped state judgment analysis, also is at to the network crime stopped state major part to the traditional crime condition limits, the author take the network bank burglary as the example, emphasized current insufficiently is also thorough to the network crime stopped state analysis. Fourth, in criminal activity precautionary measure, on the one hand not perfect is the current network crime case does not attack the document mechanism the strength primary cause, displays prominently is receiving the document procedure and the standard is not clear about, the victim prays for rescue the method to be limited; On the other hand the digital evidence collects evidence, the card difficultly to recognize difficultly, exposed at present to legislate between the content and the practice work disparity, the author explained with emphasis by the electronic evidence characteristic and the evidence collection method in the network crime detection the evidence chain link formed the difficulty. Finally, in the suitable crime punishment criterion aspect, is separately inaccurate from the legislation terminology, the crime nature is indefinite, the harm result is not clear about and so on several aspects, further expounded the current network crime legislation feasibility misses extremely, causes some criminality to be unable to investigate, or the investigation does not arrive, thus the showing network crime urgently awaits in the criminal legislation to consummate.The third part, the author mainly puts forward the proposal to our country network crime criminal activity legislation consummation. One, is clear about the network crime legislation principle, mainly is the principle which free and despotic unifies, namely the legislation must follow the information free power and the national sovereignty, the social public interest unifies; The promotion development principle , namely the legislation needs to follow the government by the essential control promotion network development; The insistence specialization principle, namely the legislation needs to follow the adaptation network characteristic; The initiative international principle, namely the legislation needs to follow the global legislation the general character. Two, suggested encroaches upon the multiple complex objective aspects by the network crime, the regulating network crime division, perfect charge content. Mainly is additionally builds the network crime crime in the harm public security crime to plant, expands is protected the computer information system scope , the splitting manufactures and disseminates the computer virus crime and so on. Three, consummates to the network crime the document standard and the correlation procedure, is accepting the mechanism, puts on record the standard, the case has jurisdiction over the angle establishment good operational mechanism which, aspects and so on reconnaissance strategy legislate. Four, emphasized digital evidence legal, take the world each place present electron evidence rule as the objective point, uses in the study model take the freedom with the free weight principle as the foundation evidence system, draws up the evidence detailed list -like evidence system and take the hearsay evidence rule and the best evidence rule as the instruction electronic data evidence system, initiates to speed up our country numeral evidence legislation work. Five, according to the crime punishment suitable principle, enhances the illegal invasion computer information system crime and the destruction computer information system crime legal punishment standard, uses methods positively and so on accessory punishment, the perfect network crime crime punishment decides after deliberation.Finally, the author for from enhances the network crime legislation work comprehensively the altitud, proposed by consummates consummation of the network method system promotion network crime legislation measure. In our country network method system construction , emphasis key enhancement network electron status legislation work; At the same time, in view of the network non-national boundary characteristic,reiterates the international judicial assistance the importance. The network crime legislation is the time entrusts with the officer of the court new task, for the safeguard law authority, the legislator must actual contact the network criminality, makes the judgment objectively, makes the contribution for our country legal framework consummation.