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Conflicts And Resolution To The Jurisdiction Of Transnational Cybercrimes

Posted on:2021-02-18Degree:MasterType:Thesis
Country:ChinaCandidate:Y SuFull Text:PDF
GTID:2416330647453979Subject:International Law
Abstract/Summary:PDF Full Text Request
Internet technology brings convenience to human life,while it also leads to a new type of crime using the Internet as the medium.Cybercrime is an illegal act that endangers rights and interests of states,societies and citizens by using information technology,which can be divided into two types: new technology crime and traditional crime committed in new ways.A large number of cybercrime acts involve a transnational element,which means act elements or substantive effects of the crime often occur in another country.Besides,the virtual and limitless scale of the cybercrime urge countries to improve their combating ability.Faced with challenges brought by cybercrimes,some advocated for a separate cyberspace jurisdiction and some argued for a relative theory of jurisdiction in the virtual world,which questioned national jurisdiction rules based on territorial sovereignty.Cyber sovereignty is the physical extension of territorial sovereignty,therefore,national jurisdiction rules applies to cyberspace.Various countries' criminal legislation affirm this jurisdiction view,which is mainly based on territorial principle,supplemented by national principle,protective principle and universal principle,still can apply to transnational cybercrimes.When a cybercrime is connected with several countries,it means jurisdictional conflicts.Based on the realistic jurisdiction rules,jurisdictional conflicts in transnational cybercrimes can be divided into three types: the conflict between different countries' territorial jurisdictions,the conflict between territorial jurisdiction and national jurisdiction and the conflict between protective jurisdiction and territorial jurisdiction.The criminal offence involving several countries' territorial jurisdictions mainly focus on illegal access of hackers and false information dissemination.As perpetrators illegally access computer systems remotely,the place where it initiates and ends are often located in different jurisdictions.Operation instructions and data just abstractly transit across borders.False or illegal information disseminated via the Internet is available to users across the world,as long as the network is available.The reason for continuous jurisdictional conflicts is the expansion of territorial jurisdiction: from the perspective of cybercrime,the place it ends is separated from the original,even the ending place can exist in multiple countries at the same time.In legislation,countries universally establish the broadest territorial jurisdiction rules against transnational cybercrime,especially regarding the location of behavior,the place of server and data as connecting factors of territorial jurisdiction.The expanding adjudication shows a very low standard of territorial principle as the place where one can obtain electronic information is regarded as an ending place.The key to address the conflict is to set a relatively high standard for territorial principle.Scholars at home and abroad put forward referential theories.Some propose additional subjective elements,requiring that territorial jurisdiction must be determined by subjective purpose of perpetrators.There is a view of adding objective elements,especially the nationality,to determine the territorial connection between the offence and the internal country.As for the offence of obtaining specific content,some scholars define the standard of connection between the act and the court place from the view of the nature of data or network.Inspired by the minimum contact standard,Chinese scholars put forward the standard related to damage or influence,requiring a subjective and objective unity between the consequence of actual damage and the perpetrator's direct intention.while the aforementioned theories have some shortcomings: It is difficult to prove the subjective intention directly.Adding the nationality standard at the objective level will draw obvious unreasonable conclusions.Technically speaking,the connection between the act and the court place is not stable.The standard related to damage or influence based on minimum contact standard is vague in its content,which needs further specification.The conflict between territorial jurisdiction and national jurisdiction happens within computer fraud and online gambling.The perpetrator utilize the Internet to carry out remote non-contact fraud abroad.The perpetrator legally set up gambling websites in overseas jurisdictions to provide cross-border online gambling services to global users.The conflict between territorial jurisdiction and national jurisdiction is directly caused by the perpetrator committing crimes across border.meanwhile,the perpetrator intentionally choose the jurisdiction,taking full advantage of differences between domestic substantive laws.Extradition is a common means to coordinate conflicts of jurisdiction,while the scope of application of extradition is limited by the extradition treaty,double criminality and efficiency issues.Measures such as repatriation of illegal immigrants,are more flexible options.Consultation is another method to resolve jurisdictional conflicts between national authorities,which is firstly set in the Cybercrime Convention in principle.By contrast,EU law specifically requires member states to exchange information on possible concurrent jurisdiction,negotiate and lead to the concentration in one member state.The matter can be referred to Eurojust for mediation if no consensus is reached in consultation.The establishment of protective jurisdiction over cybercrime which is threatening national security means that the protective jurisdiction of one country coincides with the territorial jurisdiction of other countries.There is a certain intersection between protective jurisdiction and territorial jurisdiction,as certain cybercrime under protective principle also satisfies the requirements of territorial principle.In practice,the vast majority of cybercrime can fall within territorial principle and national principle,which means the function of protective jurisdiction can be replaced by territorial jurisdiction.The international expert group of Tallinn Manual 2.0 proposed to coordinate the conflict of jurisdiction according to the reasonableness standard,which has many shortcomings: the nature of the standard is controversial,and the application is lack of specific instructions and the conclusion according to this standard is not only one.In summary,to resolve jurisdiction conflicts of transnational cybercrime,we should follow the principle of sovereignty and due process,which means the exercise of jurisdiction should not be an excuse to interfere in the affairs of other countries or infringe on legal rights of suspects.On this basis,it advocates that the international community should agree to a jurisdictional priority over cybercrime,including territorial jurisdiction,national jurisdiction over protective jurisdiction and universal jurisdiction,the target country or the actual injured country having jurisdictional priority over the country where the crime initiated,coordination between the same sequential countries in accordance with actual control and precedence.When prior jurisdictions give up prosecution,other countries acquire jurisdiction in turn.At the United Nations level,a model law on priority jurisdiction rules could be introduced to provide a platform and a guidance for international communication and coordination.All countries should actively carry out criminal judicial cooperation,exchange criminal information timely and consult jurisdiction in accordance with the order of priority jurisdiction.China should reconstruct the applicable rules of the territorial principle of cybercrime according to the actual damage connection standard,which the objective actual harm result is required to comply with the constitutive elements of the criminal law while the subjective intention is judged by the website language,the source of click and other objective behaviors.At the international level,China should rely on the existing legal system of criminal cooperation to build a regional cooperation mechanism which meets the actual needs.
Keywords/Search Tags:transnational cybercrime, jurisdictional conflict, jurisdictional priority, international cooperation
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