Qualitative Study Of Traffic Hijacking In Criminal Law

Traffic hijacking refers to the use of Internet technology to force Internet users to visit the target website against their access wishes.Or inducing Internet users to visit the target website,thereby illegally obtaining traffic that should belong to the original website.Traffic is the foundation of Internet operators.The size of traffic has a great impact on the competitiveness of network operators,and even determines whether websites can make profits and how much they can make.Traffic has huge economic value.Before 2015,traffic hijacking has been recognized as a civil tort or administrative illegal behavior.In 2015,the first criminal judgment was made on traffic hijacking behavior.Since then,traffic hijacking behavior has entered the criminal law.Judicial practice and academic circles have not reached consensus on how to identify traffic hijacking behavior in criminal law.Therefore,it is necessary to clarify the qualitative nature of traffic hijacking behavior in criminal law.To solve this problem is of great significance for safeguarding the legitimate rights and interests of Internet users and Internet operators and maintaining the order of Internet space.This paper is divided into four parts:The first part analyzes the background of traffic hijacking behavior and clarifies the concept of traffic hijacking behavior.Firstly,it introduces and analyzes the object of traffic hijacking,that is,what traffic is,and distinguishes the difference between the traffic packets sold by telecom companies such as Daily China Mobile and China Unicom and the objects of traffic hijacking.Secondly,the concept of traffic hijacking behavior is analyzed,and traffic is divided into three categories according to the characteristics of different means of traffic hijacking,namely,forced traffic hijacking,link hijacking and soft traffic hijacking.The second part analyzes the necessity of criminal regulation of traffic hijacking.Firstly,regulating traffic hijacking by means of civil litigation has limitations.Only by means of civil litigation relief can regulate the fair competition order among enterprises.For gambling,pornography and fraud websites,it is often difficult to find specific defendants,and the network enterprises suffering from traffic loss can not even initiate civil litigation.And civil remedies can only distinguish between the "winners and losers" of the network operators.The hackers behind the traffic hijacking act go free,and they make a lot of money without any punishment.Secondly,traffic hijacking has great social harm to network operators,network users and cyberspace order.Finally,it analyzes the types of traffic hijacking behavior that should be identified by means of criminal law.The third part lists the qualitative thinking and review of traffic hijacking in the current judicial practice and theory circles.The judicial practice circle and the theoretical circle have different views.The traffic hijacking related cases are found in the judicial documents network.From these existing cases,many cases in the judicial practice circle are convicted and punished by computer criminals,but the application of specific charges is still controversial.The specific charges involve the crime of damaging computer information system,the crime of illegally controlling computer information system,and the crime of illegally obtaining computer information system data.There are some problems that all traffic hijacking behaviors are generally defined as the crime of damaging computer information system,and it is not accurate to distinguish whether traffic hijacking behaviors should be defined as the crime of damaging computer information system or the crime of illegally controlling computer information system.In the theoretical circle,there is a view that traffic hijacking is defined as property crime,and there is a view that traffic hijacking constitutes larceny and destruction of production and management.The fourth part,based on the problems in the judicial practice and the academic view that traffic hijacking is a property crime,puts forward the qualitative exploration of traffic hijacking criminal law.Firstly,it analyzes the path to improve the identification of computer crimes.Firstly,it clarifies the concepts involved in the crime of damaging computer information system,and breaks the general problem of characterizing all traffic hijacking as the crime of damaging computer information system.The solutions include clearly defining "computer information system" and limiting the interpretation of "computer information system data and application program".Secondly,according to the different characteristics of traffic hijacking behavior,analyze whether each type of traffic hijacking behavior constitutes the crime of illegal control of computer information system or the crime of damaging computer information system,and correct the problem of judicial practice circles’ identification confusion.Secondly,the feasibility of characterizing traffic hijacking as property crimes is analyzed from the following four aspects: first,the legal attribute of website traffic is analyzed,second,the calculation method of traffic value is assumed,third,the possibility of regulating traffic hijacking by theft is analyzed,and fourth,the crime number of computer crimes and property crimes is analyzed.