Comparative Study of Computer Crime

Author: Zhao Bingzhi
Publisher:
Publishing Date: 2004-06-01
Features: This book is one of the sub-topics of the major project "Comparative Study of Contemporary New Crimes" led by Professor Zhao Bingzhi, Director of the Center for Criminal Law Science Research at Renmin University of China. It is also the final research outcome of the key project "Computer Crime Research" under the "21st Century Excellent Talent Cultivation Program" funded by the Ministry of Education, which Professor Zhao Bingzhi, an awardee of the program,. With the increasing reliance on computers in contemporary society and the boundless expansion of cyberspace, computer crimes have been on the rise, attracting widespread public attention and sparking a growing interest in computer crime research among criminal law scholars. It can be said that the study of computer crimes in the field of criminal law is currently in its early stages. As a new type of crime born alongside high technology, computer crimes indeed present numerous theoretical and legislative voids that need to be filled. As Ms. Yang Huangjinyu, the first Asian American U.S. federal prosecutor, pointed out, the virtual space formed by computer networks is akin to the "wild west" of today's society. This void not only requires the advancement of criminal law theory but also necessitates legislative supplementation. However, the widespread interest in this area has two potential outcomes: one is that the large number of participants may form a collective force, thereby promoting rapid development and a significant improvement in the overall level of theoretical research; the other is the effect in theoretical research, where emphasis is placed on participation rather than in-depth understanding, leading to simplistic, repetitive, and overly broad studies that, despite being hot topics, lack comprehensive, systematic, in-depth, and objective thinking and research. Objectively speaking, the latter situation seems to be an undeniable reality in the current field of criminal law in China. The collection and compilation of materials for this project spanned three years, during which thousands of papers were copied and downloaded, and nearly 100 monographs on computer crimes were collected. In the process of categorizing, organizing, and absorbing the materials, we deeply felt the prevalence of the aforementioned "emphasis on participation." Although the collection of materials later leaned more toward foreign countries and the Hong Kong, Macao, and Taiwan regions, it cannot be denied that the usability of the retrieved materials was similar to that of the mainland. Therefore, research on computer crimes, both domestically and internationally, seems to focus on innovative or in-depth theoretical research, primarily among a small number of scholars' articles or monographs. With the increasing incidence of computer crimes and the growing trend of traditional crimes being computerized, we believe that the lag in relevant criminal legislation in China is an objective reality, and this situation cannot be changed through long-term, high-cost, purely experiential legislative models. Theoretical research on computer crimes, limited to "closed-door" studies within a single country, lacks theoretical resonance and may result in twice the effort for half the result. Based on this line of thinking, focusing on the criminal legislative experience and existing theoretical research of technologically advanced countries and early or high-prevalence countries of computer crimes may be a shortcut to promoting the rapid improvement of theoretical research on computer crimes and the timely advancement of criminal legislation. Therefore, this project and the book chose to explore computer crime issues from a comparative research perspective. Before the readers is a nearly 500,000-word "Comparative Study of Computer Crimes," with the analysis of materials and writing of arguments lasting over three years. During this time, the manuscript was formally completed and finalized several times, but the continuous emergence of new legislation and cases both domestically and internationally led us to revise the manuscript multiple times in pursuit of perfection, thus prolonging the completion of this project. In the process of completing this project, we made the following efforts to ensure that the final outcome reflected its own characteristics: (1) Emphasis on systematic in-depth research in criminal law, so the criminological discussions on the characteristics, causes, and patterns of computer crimes are not the focus of this book. Based on this, although the book takes a "comparative research" approach, focusing on the comparison and mutual reference between criminal law theories both domestically and internationally, the independent criminal law analysis of various issues related to pure computer crimes in the book aims to represent or reflect the latest achievements of the domestic criminal law theory community. (2) Emphasis on absorbing and referencing theoretical research on computer crimes from Hong Kong, Macao, and Taiwan regions in China, and comparing the criminal legislation on computer crimes and evaluating the advantages and disadvantages of legal handling models across China's four legal jurisdictions. In this regard, perhaps other research and works on computer crimes have not given special attention to this point. (3) Emphasis on the progress of the latest criminal legislation abroad, focusing on judicial handling opinions of new computer crime cases abroad, and conducting targeted translation of thematic literature to ensure that the relevant research achievements remain synchronized with the progress of criminal legislation and criminal law theory abroad. (4) Attention to the opinions of legislative bodies and governments of various countries on computer crimes, collecting and organizing a considerable number of official statements and policy research reports on computer crimes from legislative bodies and government leaders of various countries, to reflect the official evaluation opinions on computer crimes and potential legislative models. Overall, "Comparative Study of Computer Crimes" emphasizes the comprehensiveness of thematic design, selecting ten topics that are currently of significant concern and controversy in the theoretical community. The topics are relatively independent, but their logical arrangement in sequence emphasizes their inherent interrelatedness; within each topic, in-depth and systematic independent discussion is emphasized, and efforts are made to advance and improve whileing existing theoretical achievements both domestically and internationally. The rapid development of computer technology and the boundless expansion of cyberspace have led to the diversification of computer crimes based on the distorted use of technology, particularly the variations arising from the computerization of traditional crimes, necessitating timely follow-up research in criminal law theory and targeted revisions in criminal legislation. It can be said that the emergence of computer crimes poses a significant challenge and also an excellent opportunity for criminal law and criminal legislation. From the perspective of challenges, the involvement of high-tech factors in crimes is an irreversible trend in the present and future, posing a practical challenge to traditional criminal law theory and criminal legislation, with the conflict between traditional criminal law theory and legal rules and computer technology, networks becoming increasingly apparent. From the perspective of opportunities, traditional criminal law, born in an agrarian society and refined in an industrial society, has long been stagnant and lacked substantial leapfrogging progress. In the information society where the overall reliance on high technology has greatly increased, the self-adjustment and self-improvement of traditional criminal law theory and criminal legislation may represent a major opportunity for their theoretical sublimation and legal rule innovation. We hope that criminal law theory and criminal legislation can face the new challenges and seize the new opportunities arising from the changing times, enhance the focus on the involvement of technological factors, prioritize the temporal updating of criminal code rules and criminal law theory, and reduce or even eliminate the criminal law voids caused by the lag of rules and theory behind reality.