The Research For Malicious Software Tort

Popularity of the Internet has brought great convenience to people. At the same time, many new forms of dangerous have been resulted from internet which endangered people's life, Such as computer viruses, spam, and malicious software and so on. This article will focus on the malicious software. The malicious software which contains viruses has seriously endangered the security of the Internet and the Internet industry's healthy development after 2006.Because of the enormous business profits and the lack of corresponding legal regulation, the malicious software has become the biggest hazard of the Internet industry. This article will focus on tort of the malicious software. On the basis of the analysis of these torts legal issues, the author will propose the future legislation for acts of tort from malicious software. I will divide the whole article into six parts. The first part will discuss the definition of malicious software. Malicious software is illegal computer software which contains malicious code, and have, business profits and social dangers. Second part will point out the principle of fault liability apply to attribution of malicious software on the basis of analysis of principles of attribution in China legal system. Third part will discuss the doctrine of "four elements" of the tort in China's civil law. According to the four elements of delict, damage, causation relationship and fault to determine whether acts in malicious software is one form of tort or not. Fourth part point out the main methods of bearing civil liability of tort resulted from malicious software. These methods shall be restoration of original condition, compensation for losses, elimination of ill effects and rehabilitation of reputation, extension of apology, removal of obstacles and elimination of dangers, but for return of property. Fifth section will present situations to apply the right of defense, which include a user's computer hardware problems, pirated software in user's computer, delegation of authority, the agreement of user and intentional use by user etc. The last part of this article is order to propose the suggestions to make specialized legislation for malicious software, develop the basic law in Internet, and establish the legal system of public interest litigation based on the above-mentioned analysis. .