On The Computer Crime

Combining generic principle of criminal law and computer science, this thesis gives an elaborate description of the concept of computer crime as well as its constitutive requisites. Also, it probes into some new points of views and puts forward a proposal of optimizing criminal legislation of computer crime of our country. The thesis includes three chapters: Chapter I: computer and computer crime. After introducing the concept of computer and security problem of computer information system briefly, the thesis gives a general description of the emergence and development of computer crime while puts forward the characters and concept of computer crime. The author points out after commenting on today's theory circle's views of computer concept, that computer crime refers to the criminal behaviors that violate national regulation, invading, destroying or abusing the computer information system so as to endanger computer safety. Chapter II: study on the legislation and the constitutive elements of computer crime in China. According to our Criminal Law, there are two charges included in computer crime, namely charge of illegally invading the computer information system and charge of destroying computer information system. First of all, the author analyses the constitutive characters of the above-mentioned two charges, pointing out at the same time, that the criminal law of our country only stipulated two charges to the computer crime, however, according to the definition given by the author, the crime includes not merely these two charges. Therefore, a microscopic research on the constitutive characters of computer crime becomes necessary. Secondly, through the four requisites to constitute the crime, the author elaborately analyses the constitutive characters of computer crime and put forward his view towards some disputable issues. Regarding the subject of crime, the thesis focuses on the questions whether the subject is a general one or a special one, what is the subject's capacity for criminal responsibility and whether unit can be a subject of computer crime. The author considers the subject of computer crime as a general one. Seeing that criminal offence of computer crime can lead to a serious consequence, and considering the cognitive ability of minors, the author proposes that it should be listed into the classification of crimes which are comparatively harmful to the society. According to the thesis, a person of and above the age of 14 should shoulder the responsibility for the crime. With reference to some regulations, rules and summaries of judicial practices issued in recent years, the author gives his opinion that unit should be a subject of computer crime. Regarding subjective aspects of the crime, the thesis probes into the question of fault form of computer crime and the purpose, motive of the crime. The author believes that the computer crime generally implements the criminal offence of invading, destroying or abusing the information system of the computer through the technological means. These behaviors actually go beyond one's commission to operate. Since it is an operation excess of authority, the actor certainly chooses the criminal offence consciously. The actor knows perfectly well that his behavior will cause the danger to the safety of computer, but still hopes or does not interferes the danger to take place. Therefore, the computer crime must be a calculated crime, can not be a fault. Computer crime has varied purpose and motive, which should not be considered as requisites of the crime. Regarding objective aspects of the crime, the thesis discusses the question of dangerous acts and dangerous consequence. There are two forms for dangerous acts – act and omission. The form of omission exists in computer crime, mainly referring to the situation that the criminal subject shoulder the responsibility to get rid of the security obstacle that the computer information system is facing and to protect the safety of computer, but only refuses to perform the obligations even...