Discuss On The Legislative Control Of Cybercrime

Cyber crime is a new task in the development of information technology. Because of the increasingly rampant cyber crime, much of the existing legislation has not been suited to the reality. So it is essential to against the negative impact of the cyber crime, revise and improve the relative laws.This paper is divided into three parts to discuss, basing on the cyber crime legislation in the mainland of China.In the first part, the writer mainly discusses the status of cyber crime legislation. Firstly, the writer proposes her own understanding of the concept of cyber crime and summarizes the characteristics of cyber crime, by introducing the main theories of different interpretations about the concept, and exploring the cyber crime and computer crime. From the view of comparison with the traditional crime, the writer discusses the four characteristics of cyber crime: borderless, the lack of crime scene; the strong hidden nature; the high intelligence and professionalism; the serious social harm and unpredictable nature. Secondly, the writer introduces the status of cyber crime legislation in the United Nations, the Council of Europe and the United States, Britain, Germany, France and other current international organizations and sovereign nation; analyzes the legislative history and provisions of China cyber-crime, and reviews the cyber crime legislation in our country briefly.In the second part, the writer analyzes the cyber crime legislation gaps in mainland of China. Firstly, there is defect in convicted system of cyber crime. In count statements, the current laws on cyber crime provisions are not only simplistic, but ambiguous. In the responsible age, the younger age of criminal has become a widespread phenomenon that not only goes against protecting the security of the Internet and information society, and may triggers and stimulates the implementation of additional network youth crime. In the aspects of unit crime, because the Criminal Code does not expressly provide for the computer crime of unit, only the direct perpetrators, participants and direct supervisors are subject to criminal prosecution by natural crime. From the view of judicial practices, the unit has solid financial strength and broad space for the operation of the cyber crime capacity, so it has been the general trend that the unit is defined as the main body of cyber crime. The traditional theory of joint offence can not cover the cyber crime. There are problems in the aspects of meaning and penalty of the mob-type cyber crime. Secondly, there is defect in the penal system. Cyber crime is not only the violations of the computer system and its information, but also violates the legitimate rights of computer users. In certain conditions, the cyber crime would endanger the national security, public safety, social and economic order. The harm of the cyber crime is increasingly evident, but the legal sentence of cybercrime in China is low. It can not effectively curb cyber crime. In the kinds of punishment, the Criminal Code lacks of qualification crimination. Thirdly, there is defect in the prosecution system. The cyber crime legislation still lacks of clear rules on the electronic evidence. So there is a certain difficulty in the identification of the cyber crime. In addition, there is not specific legislation on the issue of criminal jurisdiction.In the third part, the writer puts forward the specific recommendations about perfecting the cyber crime legislation. Firstly, there is some improvement of the conviction system: amending the article 285, 286, and 287 in the Criminal Code; reducing the responsible age and making the part of cyber crime into the relative Criminal Responsibility; adding the unit crime charges. Secondly, there is some improvement of the penal system: increasing the criminal penalties set on cyber crime according to the principle of balance between crime and punishment; completing the sentence types and adding the qualification crimination. The new qualification sentence system should include the conditions of deprivation of certain eligibility for offenders, the content and period of the qualification sentence, the withdrawal and rehabilitation, and the mechanism for supervision and management. Thirdly, there is some improvement of the prosecution system: making the electronic evidence as an independent evidence type; perfecting the criminal jurisdiction from the aspect of legal interest. The cyber crime causes any material infringement or influence to the country or citizens, then the country has the criminal jurisdiction.