Research On Criminal Law Regulation Of Traffic Hijacking

With the improvement of Internet information technology and the flight of personal PC and mobile Internet equipment into ordinary people's homes,the network has become an inseparable part of life,which also contains huge economic benefits,which attracts a number of illegal elements to try to gain a piece of it.Driven by interests,illegal and criminal acts frequently occur in cyberspace,and even form a black industrial chain.In recent years,illegal elements have used various Trojan Horse plug-ins and malware to modify the system settings of personal PC and browser,so that network users have to jump when visiting the target website.This behavior is called "traffic hijacking" and there are many disputes on how to deal with it in criminal law.Therefore,it is of great significance to explore the qualitative problem of traffic hijacking for the judicial decision to stop disputes and deepen the relevant theory of network criminal law.The full text is divided into three parts:In the first part,on the basis of defining the concept and type of traffic hijacking,the author puts forward the practical problems of criminal law regulation of traffic hijacking.In the judicial practice of our country,the handling of traffic hijacking was mainly solved by civil means in the past.The first case of traffic hijacking in mainland China sentenced by Shanghai Pudong New District Court in 2015 can be said to be of landmark significance and become a judicial benchmark for punishing such cases.However,there are many doubts about this case.At present,there are two controversial focuses on traffic hijacking in judicial practice:one is whether traffic hijacking constitutes a crime;the other is what specific crime does traffic hijacking constitute on the premise of constituting a crime?What kind of regulation path should criminal law adopt?The second part demonstrates the justification of the crime of traffic hijacking from the realistic and theoretical perspectives.As traffic hijacking has caused serious social harm to the legal rights of us and profits of thousands of people,also disturb the normal business activities and economic interests of website operators,even the whole Internet management order,it has been impossible to regulate this behavior through civil and administrative means.Therefore,based on the theory of legal interest protection and modesty of criminal law,criminal law should be the law of network traffic hijacking.It has a place in regulation.The third part focuses on the second focus,focusing on the criminal law regulation path of traffic hijacking.Generally speaking,there are two different qualitative ways of dealing with traffic hijacking:computer crime and property crime.If according to the former idea,the perpetrate or may control invade the computers of many people who are on the internet and then gain the sensitive data from the information system in computer,which constitutes the crime in Article 285 of the Criminal Law,or the crime of destroying the computer information system in Article 286 of the Criminal Law.If according to the latter idea,it may be guilty of theft and destruction of production and operation.At present,judicial practice and guiding cases tend to treat this as the crime of destroying computer information system.However,there are still some problems,such as vague identification of "serious consequences",inconsistent identification of concurrent punishment for several crimes,and obvious trend of "pocketing" charges.Therefore,on the basis of comparing the merits and demerits of the two qualitative approaches,considering that traffic hijacking transfers the property interests of the victim website,while objectively destroying the computer system,we should identify the imaginary co-offenders of theft and computer information system destruction,impose a penalty of one felony,and determine the economic losses of the victim website,the transaction price of the actor and the beneficiary.The problem of determining the amount of larceny should be solved by means of case analysis and other methods.