Research On Criminal Jurisdiction Of Network Crime Cases

Criminal jurisdiction refers to the power of a sovereign state to govern a crime committed in its territory,usually in the case of substantive law.At present,most countries have established a comprehensive criminal jurisdiction,China is no exception.China's "Criminal Law" adhere to the principle of territorial jurisdiction,the principle of people,the principle of protection,universal jurisdiction of the comprehensive application of the principle of criminal jurisdiction.However,the network transnationality,concealment characteristics,making cybercrime easily break through the boundaries of the state,geographical boundaries,cybercrime may be done through a number of countries,the consequences of cybercrime may also harm more than one country,making the current The criminal jurisdiction of most countries is difficult to apply and there is an increasingly serious conflict between States in the exercise of criminal jurisdiction in cybercrime cases,that is,positive conflicts of positive or unregulated conflict.How to solve this problem not only affects the sanctions of cybercrime,but also involves the correct maintenance of the judicial sovereignty of a country.In this regard,domestic and foreign law researchers put forward a lot of solution theory.In this paper,five different solutions are analyzed in detail,and the gains and losses of each theory are explained respectively.The specific situation of the legislative practice of criminal jurisdiction in cybercrime cases at home and abroad is different.This paper focuses on the choice of Anglo-American law on behalf of the United Kingdom,the United States,civil law on behalf of the national German and international aspects of the Council of Europe,China to examine its criminal jurisdiction on criminal cases made by the provisions.The UK's Computer Abuse Act 1990 provides for the jurisdiction of three cybercrime.The United States as a federal state,the state through the "long arm rule" to become a crime of cybercrime,so that the state courts have criminal jurisdiction of cybercrime.Germany's territorial jurisdiction is becoming more broad,and for this situation,the German criminal law community has concluded that only criminals have the subjective hope or can fully recognize that criminal consequences take place in their own country and that Germany has the right to criminal jurisdiction.The Cybercrime Convention is the European Council for the joint fight against cybercrime,the provisions of the criminal jurisdiction is mainly based on the principle of territorial jurisdiction to make,when the jurisdiction of the conflict in a negotiated settlement approach.China's criminal jurisdiction on the provisions of criminal law is more crushing,in general,is still adhere to the territorial principle of the traditional criminal jurisdiction.Judicial practice in the fight against cyber crime powerless,the main reason is that the existing jurisdiction theory or legislation can not match it can not match,triggering a specific conflict.To determine the jurisdiction to be under the guidance of certain legal principles,the author believes that should include the principle of justice,to facilitate the principles of litigation,the actual control and the principle of precedence and the principle of jurisdiction consultation,in determining the jurisdiction of cybercrime should be four Principle as a prerequisite and basis,and throughout.The principle of fairness is the basic principle of equalization of litigation and human rights,blind expansion of their own criminal rights will not only repeat the criminal suspects to punish human rights violations,but also lead to the jurisdiction of the dispute;to facilitate the principle of litigation to improve judicial efficiency,Is the principle that the jurisdiction is essential;the actual control and the principle of precedence are the principle of settlement in the event of a conflict of jurisdiction;the principle of jurisdiction consultation,even if States are in conflict with the determination of jurisdiction,but in the end The principle is to maintain a consistent,that is,the timely and effective combat and governance of cybercrime,the principle is to resolve the state or region between the occurrence of jurisdiction disputes or conflict should always follow the principle.How to determine the criminal jurisdiction of cybercrime is the most important measure of the crime of the identification,as a basis and premise,to avoid the conflict of jurisdiction can be from the domestic and foreign aspects of two aspects,that is,in the domestic,Adhere to the traditional theory of criminal jurisdiction on the basis of a critical absorption of the new theory of criminal jurisdiction,adhere to the principle of territoriality on the basis of the principle of harm to the crime of restrictions on the crime;international,take the lead in the development of international conventions to strengthen criminal justice,Perfect the extradition laws and regulations,sign the criminal jurisdiction of the transfer of jurisdiction agreement,limited recognition of the effectiveness of the decision of other countries.