A Qualitative Study On The Criminal Law Of Making And Selling Plug-in Software

Digitalization,intellectualization and informatization promote the unprecedented digital environment.It is only one step away for "technical support" to be transformed into "technical crime".The use of technology to commit crime has become an unavoidable pain of modern science and technology.Plug in software such as tarsal maggot,with the vigorous development of the game iterative update.Sorting out the cases of making and selling plug-in software in the past ten years(2011-2020),the overall number of crimes shows a trapezoidal growth.Although the qualitative problem of making and selling plug-in software has been discussed for many times around 2009,the related problems of criminalizing plug-in behavior have not been fundamentally solved.Criminal law does not directly provide for the conviction and sentencing of "plug-in" behavior and there is no clear and consistent guidance on the criminalization of making and selling plug-in behavior.In this case,it is necessary to accurately determine the application of criminal law charges of making and selling plug-in software based on the interpretation of existing laws and regulations,combined with the judicial context and using the legal analysis of normative protection purpose.The details are as follows:The first chapter is an overview of the behavior of making and selling plug-in software.It briefly introduces the meaning,core characteristics,specific forms of plug-in software,as well as the theoretical and practical difficulties and disputes of the behavior of making and selling plug-in software.Plug in,in the general sense,refers to the tool to modify the normal data of the game through abnormal means to achieve some illegal purposes.It is different from "private service" in terms of technical characteristics and legal consequences.We can not generalize the infringement of online games.The illegal behavior of making and selling plug-in software should be closely related to the technical principle and the behavioral characteristics of manufacturing and selling.The behavior of making and selling plug-in software is a typical computer technology crime,and the different operation mechanism and specific implementation methods will lead to different qualitative directions of its behavior.The second chapter demonstrates whether the act of making and selling plug-in software constitutes the crime of illegal operation.Based on the technical characteristics of high generality and high abstractness in the establishment of articles on the crime of illegal business operation,it has become a common practice for courts to apply the crime of illegal business operation to deal with the production and sale of plug-ins.However,whether judging from the constituent elements of "violating the state regulations","disturbing the market order" or "illegal operation",it is suspected that the act of manufacturing and selling plug-in software as the crime of illegal operation will break through the boundary of the constitutive elements of the crime and violate the principle of legality.The third chapter discusses and analyzes the theoretical disputes on the application of copyright infringement to the production and sale of plug-in software.Combined with the different kernel behavior structure of whether the plug-in software is "offline",and referring to the substantial similarity standard,this paper makes a reasonable interpretation of the expansion of the scope of "distribution" of the crime of copyright infringement,and excludes the simple sale of plug-in software.On the basis of the original reproduction and distribution,the criminal law amendment(11)adds "spread to the public through the information network",which provides the applicable basis of criminal law for the behavior of providing free download of plug-in software.The fourth paragraph is about the logic of regulating the production and sale of plug-in software by providing the crime of invading and illegally controlling computer information system programs and tools.In the production and sale of plug-in software,whether it is the behavior of developing and selling plug-in software at the same time,or the behavior of simply selling copies of plug-in software,which meets the incriminating standard of "serious circumstances",should be recognized as belonging to the regulation category of section 3 of article 285 of the criminal law.