Comparative Study of Computer Crime (Volume 6)

Author: Zhao Bingzhi
Publisher:
Publish 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 Criminal Law Research Center at Renmin University of China, and also the final research of Professor Zhao Bingzhi, a recipient of the Ministry of Education's "21st Century Excellent Talent Cultivation Program," under the key project "Research on Computer Crimes" funded by the Ministry of Education. With the increasing reliance on computers in contemporary society and the boundless expansion of cyberspace, computer crimes have been on the rise, drawing widespread public attention and sparking significant interest among criminal law scholars. It can be said that the study of computer crimes in 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 gaps that need to be filled. As Ms. Yang Huangjinyu, the first Chinese-American federal prosecutor in the United States, 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 calls for 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 effort, thereby accelerating the rapid development and overall improvement of theoretical research; the other is the blind following effect in theoretical studies, where participation is emphasized over depth, leading to simplistic, repetitive, or merely "review" type research that lacks comprehensive, systematic, in-depth, and objective analysis. Objectively speaking, the latter scenario appears to be an undeniable reality in China's criminal law academia today. The collection and compilation of materials for this project spanned three years, during which thousands of papers were copied and downloaded, and nearly a hundred monographs on computer crimes were gathered. In the process of categorizing, organizing, and absorbing these 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 showed similarities to those in mainland China. Therefore, regarding the study of computer crimes, both domestically and internationally, innovative or in-depth theoretical research seems to be concentrated in the works of a few scholars. 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 empirical legislative models. Theoretical research on computer crimes, confined to "closed-door" studies within a single country, lacks theoretical resonance and may yield diminishing returns. Based on this approach, focusing on the criminal legislative experiences and existing theoretical research of technologically advanced countries and early or high-prevalence countries of computer crimes may be a shortcut to rapidly improving the level of theoretical research and timely legislative adjustments on computer crimes. Therefore, this project and the book adopt a comparative research perspective to explore the issue of computer crimes. The approximately 500,000-word Comparative Study of Computer Crimes before the reader involved over three years of time in data analysis and argumentation. During this period, the manuscript was formally completed several times, but the continuous emergence of new legislation and cases both domestically and internationally led us to revise the draft multiple times out of a 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 reflects its unique characteristics: (1) Emphasizing systematic in-depth research in criminal law, thus the criminological discussions on the characteristics, causes, and patterns of computer crimes are not the primary focus of this book. Based on this, although the book adopts a comparative research approach and focuses 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 domestic criminal law theory. (2) Emphasizing the absorption and reference of theoretical research on computer crimes from Hong Kong, Macao, and Taiwan regions, as well as the comparative analysis and evaluation of the of criminal legislative models and legal handling modes for computer crimes across China's four legal jurisdictions. In this regard, perhaps it is an area that other computer crime research and works have not specifically addressed. (3) Emphasizing the progress of the latest criminal legislation abroad and the judicial handling opinions on new computer crime cases, and conducting targeted translations of relevant literature to ensure that the research findings remain synchronized with the latest developments in criminal legislation and criminal law theory abroad. (4) Focusing on the tendencies of legislative bodies and governments toward computer crimes, collecting and organizing a substantial 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 and potential legislative models for computer crimes. Overall, the Comparative Study of Computer Crimes emphasizes the comprehensiveness of topic design, selecting ten topics that are currently of significant concern and controversy in the theoretical field. The topics are relatively independent but are arranged in a logical order that highlights their intrinsic interconnections. Within each topic, in-depth and systematic independent discussions are emphasized, and efforts are made to advance and improve upon 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 arising from the distortion of technology, particularly the variations resulting 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 technology in crime is an irreversible trend in both the present and the future, posing a practical challenge to traditional criminal law theory and criminal legislation, as the conflict between traditional criminal law theory and legal rules and computer technology and cyberspace becomes increasingly evident. From the perspective of opportunities, traditional criminal law, which originated in agricultural society and was refined and matured in industrial society, has long been stagnant and lacked substantial breakthroughs. In the information society, where the overall dependence 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 elevation and legal renewal. We hope that criminal law theory and criminal legislation can confront the new challenges arising from the changing times and seize the new opportunities, enhance their focus on the involvement of technological factors, prioritize the contemporary updating of criminal code rules and criminal law theory, and reduce or even eliminate the criminal law vacuum created by the lag of rules and theory behind reality.