Qualitative Research On Criminal Law Of Distributed Denial Of Service Attacks

With the rapid development of network technology,distributed denial of service attacks have gradually become one of the factors affecting network security in China.There are various theories in the field of criminal law and judicial practice about what kind of crime the distributed denial of service attack should constitute,including the crime of destroying public telecommunication facilities,the crime of destroying production and operation,the crime of illegally controlling computer information system and the crime of destroying computer information system.The distributed denial of service attack does not damage public telecommunications facilities,nor does it harm public security,so it should not be recognized as the crime of destroying public telecommunications facilities.The distributed denial of service attack does not belong to the situation of controlling the computer to perform specific operations without authorization or beyond authorization,so it does not belong to the crime of illegally controlling the computer information system.In addition,the distributed denial of service attack does not belong to the behavior of destroying production and operation "in other ways",so it cannot be convicted and punished according to the crime of destroying production and operation.The distributed denial of service attack violates the pre specification of computer system security and belongs to the behavior of interfering with the function of computer information system.But only the behavior with serious infringement of legal interests can be recognized as a crime.According to the infringed interests,distributed denial of service attacks can be classified into distributed denial of service attacks that infringe on public interests and distributed denial of service attacks that infringe on individual interests.The legal interests protected by the crime of destroying computer information system include public order and the operation safety of computer information system.Therefore,only the distributed denial of service attack that infringes public interests should be identified as the crime of destroying computer information system.The distributed denial of service attack that infringes on individual interests does not damage the legal interests of public order,nor does it lead to the result of the crime of intentional destruction of property,and there are no other charges that can be applied,so it should be recognized as an administrative illegal act and should not be punished as a crime.