On The Concept Of Data In The Sense Of Criminal Law

Crimes by means of data have shown a high incidence in recent years,and the protection of data and information has also become a hot issue in criminal law research.There are two main difficulties in such crimes in judicial application: firstly,whether it is necessary to explain the limitation of the data;secondly,how can such crimes be distinguished from other relative crimes so as to determine the sentence?This difficulty is actually "two sides in one",and its essence is the discussion of the concept of data.Therefore,this article is an ontological study of the "data" : how to accurately define its scope and apply it accurately in the context of China’s Criminal Law.The prerequisite for data research in this article is to limit the data to data stored in computers or networks.Under this premise,this article starts with the three main characteristics of the data.First of all,data is general.All data is based on "binary",and computer systems have other functions such as operation on this basis.The introduction of the concepts of "big data" and "Microdata" did not pose a challenge to the "binary" foundation.Data security is still to ensure that the data itself is not illegally obtained,illegally tampered with,or illegally hindered from being used.In contrast,computer systems have added processing functions based on data.Although the two belong to different behavioral objects,they generally have special relationships.The destruction of computer systems must be based on the destruction of data,but the opposite is not true.Secondly,the data has physicality,is an objective electromagnetic record,has a physical foundation,and belongs to different behavior objects than virtual property,and should not be confused.Virtual network property is essentially a creditor’s right attached to data,which reflects the relative creditor’s rights relationship between the user and the operator.Virtual property can be held by right holders through account passwords,etc.When others control the account password of the virtual property to transfer and cash out the property,the right holder loses possession.Therefore,the theft of virtual property is deemed to be a crime of theft.Thirdly,data has formality.The common point of personal information and intellectual property is that both are "intangible".The core value is in its content.The data is only a form of expression and there is no relationship between form and content.It does not affect each other.Infringement of intellectual property rights bymeans of modifying data shall be handled as a crime of copyright infringement.In addition,because the data itself is distinguished from other behavioral objects,it faces the problem of the number of crimes when two objects are violated at the same time.First of all,data crime and property crime should belong to Imaginary Jointer and illegal competition.The reason is that the behavioral objects do not overlap,only because the case factual competition.Therefore,Article 287 of the Criminal Code should be made by law.Secondly,the difference between imaginary conspiracy and implicated offenders lies in the number of acts.Data crime should be judged by imaginary conspiracy or implicated offenders,and the number of acts should be judged in specific cases.The judgment method is to see whether the behavior of obtaining,adding,deleting,or modifying data can be directly evaluated as other crime constituting elements.