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Criminal checks and balances on the network technology_297

By Jean Mitchell,2014-10-30 14:27
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Criminal checks and balances on the network technology_297

Criminal checks and balances on the network technology

     Summary this paper, the criminal law on cyber crime and cyber technology environment, first from a new perspective describes the characteristics of cybercrime and technical characteristics of the substance and use it as the premise of checks and balances on the network technology, discusses the need for criminal law, including the technology on the network checks and balances on the content of criminal law will soon be Internet-oriented technology, criminal deviance boundaries; and technology on the network model of criminal law in the legislative choice of checks and balances, that in the present and a period of time, choose the model of separate legislation can give full play technology, checks and balances, which is the unity of legislation and the future are not contradictory.

     Key Words Cyber Crime / Criminal Law / Technology

     The face of long-standing popularity of the Internet, the "three noes" statement: the Internet, without borders, no laws and Internet technology can not be managed from the current theory of the world related to the development and the

    legislative, judicial practice of view, to criminal law to protect vulnerable The network has become a basic consensus. The network society is not just a collection of technologies, which is mapping the real world, in cyberspace, also requires

    codes of conduct and ethical standards. In the criminal law protection of the network, network security technology is not a criminal law and irreconcilable. Technology, while the fight against cyber crime can not have the final dependence, but

    does not mean that doing nothing in front of cyber crime. In the network society where the rule of law, criminal law, the effectiveness of the urgent need for the continued support of technical advantage. Therefore, we must not ignore the technology, the network checks and balances of the criminal law.

     1, cybercrime features and technical characteristics of the real result of this paper is to explore technology, criminal checks and balances on the network, thus, we will be the characteristics of cyber crime comes down to two things: technical characteristics and substantive features. (A) The real characteristics (social harm) the meaning of real crime is that "behavior not because it violates the criminal law norms, but because it violates the criminal law to protect the

    substance of a crime." (Note: Li Haidong: "Introduction to Principles of Criminal Law", Law Press, 1998, p. 13.) Cybercrime cyber crime real feature of the infringement of legal interests protected by criminal law, with social harm.

    Cybercrime has been seen as a new crime, but can not ignore the basic reality is: the network society and the social reality are inextricably linked. We have seen a large number of offenders on the Internet is still theft, pornography, defamation, gambling, drug trafficking and terrorism and other crimes, but as illegal intrusion into computer systems which would be a new crime, it can be seen as a network Sichuangminzhai pirated. Traditional criminological theories can also explain the computer network crimes. From the

    Criminal Law of the crime constitutes a theory, we can put the real world crime and cyber space, consisting of four elements of crime, namely, the main elements of crime, the subjective elements of crime, crime and criminal objective elements of

    the object element to compare one by one, we can easily found that two kinds of acts are criminal in the real

    characteristics - social harmfulness of different network deviant behavior only some objects or a specific pattern of behavior different from the traditional concept. In the long run, cyber-crime is just "general crimes." Computer network crimes at this stage is only in the initial stage, with the increasing popularity of computer networks and the penetration of human life, "cybercrime" will also become a crime, the

    existence of a new form of the universal. (B) technology characteristics (network technology-dependent) network

    technology, crime is a crime, not necessarily relying on a computer network technology, criminal act is not carried out.

    The technical features of the Cyber Crime cybercrime network technology dependent. Can be said that the continual emergence of new technologies, ways and means to make crime and

    environmental vectors are moves forward. Some technical inventions such as gunpowder, guns, telegraph and telephone to provide a criminal with an increasingly effective tool for crime, and those who create an era of technological leaps of the crime may have been more than tools of innovation, but also provides a new implementation of environmental and

    carriers. The emergence of modern social networking technology, and development of a full range of human social life and the impact of those inventions is unmatched by the. In order to describe the network of crime in front of our

    general, pointed out: cyber crime is a replica of crime in cyberspace, in fact, this conclusion is the network that contains another feature of crime: that both have a reproduction of traditional crime, while also has network technology-dependent. This is brought about by the network in

    those new charges under the criminal behavior was particularly clear-cut.

     Second, technology, awareness of the need for checks and balances to the network of crime reproducibility, began to understand computer network crime and other traditional crimes commonality allows us to circumvent some of the technical features of the network deviant behavior, identify the nature of their crime, In case of illegal intrusion into computer information system behavior, just as in real life acts of

    intrusion into homes, like the intrusion into important areas of computer information systems brought about a greater social harm. Recognizing that a network of technical computer network crimes, it is clear understanding of computer network crimes

    personality - network technology dependent. Faced with

    demanding operational cyber crime-related criminal law, I

    believe that cyber crime is now associated with the criminal law of the technical factors of awareness and understanding of too few. As some scholars emphasized that the scientific spirit of the law as criminal law relating to cyber crime would like to stress the fundamental role of network technology. On the status of States to combat cyber crime, if the over-exaggerate the role of law, to make people satisfied

    with the existing criminal law hesitant; in our understanding of cyber crime is also very limited circumstances, only a clear understanding of the network technical characteristics of criminal networks in order to better protect the network

    against cyber-crime. In the country's political and legal system, criminal law can only be the last bulwark of protection of society, criminal law, such requirements Modesty State Penal Code to protect the network when the network behavior can not be arbitrarily criminalized. After all, in the modern rule of law, the penalty is for the most socially destructive means of national laws. This requires that legislators should seek a small amount of the penalty for the most spending to achieve maximum social security benefits.

    Technology, the network checks and balances of the criminal law is also reflected in the certainty that it can strengthen the criminal law to restrict the transfer of legislative power. With the high-tech crime-related criminal law

    provisions, often contains many technical terms, these countries will be the usual practice is the term 11 Xiangjie attached provision of the Ordinance. In this way, the Penal Code in order to complete clarity to determine the content of the high-tech crimes, so that criminal law is more certainty and operational. It will also limit the Criminal Code at the highest legislative power in the hands of the legislature. To China in 1997, "Penal Code" Article 285 to Article 287, for example, in criminal law, only these three provisions on

    computer crime, the lack of appropriate terminology such as "invasion", "Computer Information+Systems">Information Systems" and other technical definition of . The writings of both scholars, or in the judicial practice, have adopted the

    State Council, Ministry of Public Security issued rules and regulations in the interpretation of the relevant terms, in particular Article 287, there is no relevant technical explanation is almost tantamount to a piece of paper. In this way, is not conducive to certainty in criminal law, but also actually be the NPC's legislative power to the Penal Code does not have the legislative authority of the department. In short, the law must respect the power of technology. Network operability criminal law requires the urgent needs of the

    relevant legislative, judicial activities, undertaken by the technical checks and balances. The lack of technical support, not only legislation would be difficult to even formulate laws, the relevant provision will be ineffective, not only the

    judiciary will be at a loss, the offender pleaded guilty Executed very difficult.

     3, the network of criminal responsibility in the

    technological possibilities in 2000 the world's largest Internet companies Yahoo, lawsuits, in which case it is very

    typical of France. (Note: The circumstances of the case can be found Masatake: "Paris Court" Yahoo case "determination of legal thinking", since http://www.people.com.cn/, 2000 Nian 12 Yue 13. Must be explained , Paris, Yahoo's case, from the

    point of view is the civil penalty, but in our country is very likely to deal with as criminal cases. Therefore, we expected to find from the case, the revelation of its criminal law on the network.) April 2000, the French Internet users found that

    Yahoo's European sites of Nazi auction items, including the dissemination of racist and some Nazi-related memorabilia

    Memorabilia and thus produce a series of lawsuits. Paris, France, to make an urgent court ruled that Yahoo, the company asked the U.S. ruling within 90 days after the issue, take effective measures to prohibit French users filtered access to the auction of Nazi heritage site. Court in Paris, the course of this case, Yahoo both in the legal and technical aspects of the business for their own behavior of arguments: first, in law, English Yahoo.com Yahoo's business from the jurisdiction of the United States Government, pursuant to United States the Constitution does not limit the online auctions of Nazi items, while Yahoo's French-speaking portal Yahoo.fr does not host

    such auctions, there is no breach of French law; second, technically, Yahoo said that now there is no effective filter detection system to identify French users and restrict their access to related sites. Paris court held that, while Yahoo's

    French-speaking portal site does not host such auctions, but the open nature of Internet-based, the French online tour are

    just a little mouse can be transferred to other Yahoo's French language portal, Yahoo services, Yahoo must be respected

    French law to ban French users from accessing auctions of Nazi items English website. But technically, the computer group of experts appointed by the court after several months of technical feasibility studies and ultimately to provide the court ruled in favor of the testimony. That under the special development of the "filtering" technology, there is a user can be identified the nationality of the system, coupled with the use of passwords, you can block 90% tried to enter the site of Nazi memorabilia from the French Internet users, the technical support of this testimony, courts to decide. "Yahoo's case," ruled that one of the contributions is that it fully demonstrated the law of respect for the new science and

technology, it is technical support that makes the judiciary

    finally confirmed Yahoo's legal responsibility. Because Yahoo is technically made to justify the Court of Paris in May 2000 although the punishment would come to Yahoo's basic views, but still waiting for a full six months, so that science and

    technology community to enforce the law demonstrated the technical feasibility of . To be sure, Yahoo's case is a criminal law and technology in the Internet space with a good try. Meanwhile, the criminal law from this case can be the greatest reward should be such a concept - technical

    possibilities. The law is only possible asking people to do things, can not ask people to do impossible things. Therefore, to confirm whether the conduct of the perpetrator guilty, must be based on their behavior to determine the specific

    circumstances at the time. Here is the West of criminal law contains a very important concept - looking forward to the

    possibility. Its basic meaning is that the perpetrator acts of the time, based on the specific circumstances of the time and

    look forward to the perpetrator make the possibility of lawful conduct. Cybercrime in the technological possibilities in the network is looking forward to the possibility of technological environment in which it must contain an important part, it

    refers to the network behavior in the particular technological conditions, the behavior of people looking forward to the possibility of making an unlawful act. Because cybercrime is implemented in the technological environment, and cyber crime be set up to have the technical possibilities, not only that, the concept of technological possibilities, as the concept of looking forward to the possibility of the same, not only in the establishment of a crime that has an important role, it should also be become a network of criminal law, one of the core elements of the theory. Only in this way, technology is possible in the network-based theory of criminal law is also a place for the ultimate technology, the network will be checks

    and balances of the criminal law implement foundation in theory. Reposted elsewhere in the paper for free download http://

     4, the network of crime of misconduct in the technical limits of the social deviance of crime, the criminal law whether the

    conduct violates the laws protected by its provisions benefit is the sole criterion for the crime. However, community is becoming increasingly technical, social behavior is also increasingly technical aspects of data and information age,

cyber crime network of technology-dependent decision process

of the criminal deviance and network technology has always

been closely linked to the development. AT

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