The Expansion And Limitation Of Criminal Legislation Of Cyber Crime

Under the risk society,the criminal legislation of cyber crime in China presents an expansion trend,which is reflected in the criminal law’s advance intervention of certain types of behavior before the crime occurs.To some extent,the scope of punishment has broken through the traditional individual legal interests and consequentialism,and expanded to the pre-stage of collective legal interests and harmful consequences.Moreover,infringement of legal interest,as the basis for the initiation of the right of state punishment,has gradually weakened its relevance to individual legal interest due to the abstraction of the concept of legal interest,and the initiation of the right of punishment lacks certainty and predictability.In the judicial practice,the application times of some laws proliferate and there is a tendency of pocketing.Therefore,the criminal legislation of cyber crime should consider the boundary of crime prevention,ensure the expansion of criminal law legislation within a reasonable range,and prevent overly active legislation leading to symbolic legislation.Since the expansion of criminal legislation has been established,the judicial application of criminal law should be regulated by the guidance of relevant principles,and reasonable restrictions should be given to prevent the adverse consequences caused by the arbitrary expansion of criminal legislation.The paper is divided into three parts:The first part combs the performance of the expansion of criminal legislation of network crime,including the expansion of the subject of cyber crimes,the pre-punishment of cyber crimes,and the expansion of the benefits of the protection law into the cyber space.Secondly,it points out the existing problems of the expansion of criminal legislation of cyber crimes:first,the expansion of criminal legislation of cyber crimes has the tendency of symbolic legislation,which will destroy the function of criminal law.Second,the cyber crime clauses in the internal system of criminal law are fragmented,and there is no close connection between the new clauses and the original ones.Third,the expansion of the concept of legal interest leads to its abstraction and spiritualization,and the scope of legal interest protection is difficult to determine.Fourth,the application of new cyber crimes in judicature is faced with the problem of improperly expanding the scope of punishment.The second part is to analyze the rationality of the expansion of criminal legislation of cyber crime.First of all,the expansion of criminal legislation of cyber crime is a theoretical choice under the risk society.The criminal legislation of cyber crime adopts the proactive preventive criminal law concept of preemptive and early protection of criminal law,which conforms to the law of social development.However,it should be vigilant against excessive criminalization and restrictions on civil liberties,and the criminal law theory should adhere to the basic principle of legal protection and the last resort of criminal law to limit the excessive expansion of legislation.Secondly,a dialectical analysis of the legal interests of the order in cyberspace is carried out.The existence of the legal benefits of the order in cyberspace should be affirmed,and the interpretation of the legal interests of the order in cyberspace should be restricted.Finally,the principle of modesty of criminal law should be injected with new connotation under the network era.In the aspect of legislation,we should moderately expand to prevent excessive criminalization,and in the aspect of judicature,we should restrict the application of penalty through the principle of reasonable interpretation.The third part is that in the face of the possible harm caused by the expansion of the criminal legislation of cyber crimes,we should adhere to the judicial restriction,and at the same time,we should strengthen the legislation properly,so as to avoid the infinite expansion of the scope of criminal punishment.In the aspect of legislation,we should adhere to the unitary legislation mode,and give full play to the role of non-criminal law and the self-correcting ability of network subjects.The internal system of criminal law should be adjusted appropriately,and the related chapters of computer network crime should be added to the criminal law system.On the basis of not changing the original law,new types of conduct are added and provisions of the same type are reclassified.In the judicial aspect,the judgment standard of the new legal interest should be clarified.A limited expanded interpretation of "illegal and criminal activities";Make clear the restrictive effect of "serious circumstances" on the constitution of crime;Limit the substance of the network help behavior.