Research On International Law Against Cybercrime

Cybercrime is generated on the basis of network informational technology,and is the inevitable outcome of the development of network society.With the rapid development of informational technology,the network era has developed from era 1 to era 2,and is moving rapidly towards era 3.The field of cyberspace has been formed,and the cyberspace also forms a "double layer society" with the Material Space.The connotation of cybercrime is also developing.Now it has developed into three levels: taking the network as the object of crime,the tool of crime,and the crime space.Cybercrime is no longer limited to the high-IQ and high-tech crimes that were previously committed only against computer systems.Traditional crime is also included in the category of cybercrime.With the rapid development of the network and the borderless character of the cyberspace,the cybercrime presents the trend of organization,industrialization,internationalization and plebification.The number of crimes is straight up and the scale of the crime is expanding day and day,which causes huge economic losses and unpredictable negative effects on the international community.Cybercrime has become a great threat to global security and a global problem that needs to be solved urgently in modern society.It is difficult to effectively combat crime by only one country's legal power.Cybercrime has attracted more and more attention from all over the world,and has become a hot issue in the international community.The international community has also made efforts in various aspects to combat cybercrime,and the relevant international governance mechanisms to combat cybercrime have made great progress,including the international conference mechanism,the international organization mechanism and the international treaty mechanism.Although the three governance mechanisms have some positive impact in the fight against cybercrime,they also have their own shortcomings.The international conference mechanism focuses on the expression of position,which provides a platform for communication among countries.It has certain positive impact for the formation of international consensus,but the "retreat" is greater than "pragmatism",and the achievement of the meeting is not legally binding.The international organization mechanism means that some regional or global organizations rely on the existing organizational platform to actively promote the construction of rules,standards and systems in the field of cybersecurity and cybercrime,but there are also shortcomings in the narrow range of effectiveness and functional deficiencies.The international treaty mechanism refers to the international treaties on cybercrime established by the international community,most of which are regional treaties.To a certain extent,these treaties have eliminated the phenomenon of "crime avoidance paradise" and provided a legal basis for regional member states to fight cybercrime.However,not all treaties are legally binding and the validity treaty has made its scope narrow because of the nature of the region.The relevant content is too principled and framework,and the effect of implementation is greatly reduced.Moreover,there is a phenomenon of transplantation and reference between treaties,which results in repetitive construction and waste of resources.In addition,because of the different interests of countries and the conflict of values,all countries compete for the discourse power in cyberspace,and the increasing mechanism makes the existing international governance mechanism fragmentary.This fragmented governance mechanism is not suitable for the global nature of cybercrime.It is difficult to effectively deal with the challenges brought about by cybercrime only by the decentralized mechanism,and even hinder the governance of cybercrime.Therefore,it is necessary to build the centralize governance mechanism at the global level.Among them,a unified global cybercrime convention is the most powerful means.However,the international community has different views on the path of establishing a global convention on cybercrime.Western developed countries,led by Europe and the United States,have called for the establishment of a convention on the basis of existing international treaties,that is,to promote the globalization of the Convention on Cybercrime.Developing countries,represented by China and Russia,have called for a convention under the UN framework.After analysis,we can know that the Convention on Cybercrime has shortcomings in universality,fairness and applicability.Moreover,according to the signing process of convention,there is no prospect of globalization in the Convention on Cybercrime.The globalization of Convention on Cybercrime merely imposes the rules of developed countries on developing countries.Therefore,the United Nations should bet the platform for the full coordination of countries' s interest,with the equal participation,so that the Convention can represent the interests of the largest number of States in order to effectively prevent and combat cybercrime.Because there are many problems in the application of traditional rules,the convention must respond in order to solve the dilemma of the application of these rules.China,the largest network country with the largest number of Internet users and the most widely network area,not only work on domestic law,but also actively participates in the international governance mechanisms,as participants,builders and leaders.As an active advocate for the establishment of a global convention on cybercrime,China should adhere to the principle of cyber sovereignty,taking it as an uncompromising bottom line principle when it participates in the formulation of the convention,promote global cooperation with bilateral and multilateral cooperation,speed up the construction of the network powerful country,and strive for the right of rule-making.The first part of this paper gives an overview of cybercrime,including its concept,connotation,types,characteristics and development trend,concluding that cybercrime has become a global problem.The second part mainly discusses the existing international governance mechanism of cybercrime,starting from the main performance of each mechanism,analyzes its function and shortcomings in combating cybercrime,finding out the fragmentation of the existing international governance mechanism.The third part puts forward that a global cybercrime convention should be established to combat cybercrime.Firstly,because of the global nature of cybercrime,the inherent requirements of fragmentation,the dilemma of the application of traditional legal rules and the defects of existing international treaties,a global convention on cybercrime is necessary.Secondly,it is proposed that the United Nations should be the platform for the convention.Then it puts forward some suggestions on the application of the traditional legal rules.At last,it analyzes China's efforts in cybercrime governance and puts forward some suggestions about participating in the global cybercrime convention.