Regulation of Cyber Space: An Analysis of Chinese Law on Cyber Crime

IF 0.7 Q4 CRIMINOLOGY & PENOLOGY International Journal of Cyber Criminology Pub Date : 2015-07-01 DOI:10.5281/ZENODO.56225
Xingan Li, K. Jaishankar
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引用次数: 9

Abstract

IntroductionRecent two decades witnessed a swift transforming of human and social landscape due to the pervasive use of digital networks, which connect individuals, institutions, businesses and agencies spreading over the world. The growing convenience for creating, depositing, processing, transmitting, and retrieving of information increased the quantity of data in both static and dynamic processes, improved virtual communication, developed social networks, and at the same time, risks, threats and dangers have also been un-ignorable problems.Naturally, it was not strange that information systems in the background of Chinese history had been regarded as a modern instrument in an ancient territory. In fact, many countries were confronted with similar challenge at the dawn of the information age, when they were perplexed for how to benefit from the pervasive use of information systems while avoiding negative political and legal impact of unmonitored users, uncensored information, unchecked communications, uncontrolled activities and unsolicited visits. Such potentialities were also eroding footstones of the Chinese Great Wall.Additionally, migration of criminal phenomena into information systems-facilitated cyber space has attracted increasing attention due to its high pace of expansion (Li, 2008; Li, 2009). The 1997 Penal Law of China (which was usually translated as Criminal Law, but, Penal Law should be more exact translation) provided fundamental criteria and guidelines for convicting and sentencing cyber criminals. With assistance of a series of other statutory laws and administrative regulations, a legal and regulatory system has been taking shape to suppress the spread of cyber crime of multiple forms, the so-called new century's pestilence, in cyberspace. The explosion of new and pertinent laws and regulations over the past two decades reflected society's concerns on the ancient phenomenon in a modernized context, and efforts to wrestle with it. Yet, it remained uncertain whether the current approach to deter and redress cyber crime would prove to be successful.In the following sections, this article will review the process of establishing the legal framework on cyber crime in China, examine the features of Chinese laws and regulations tackling cyber crime, and analyze the policy for preventing cyber crime through control over cyber space in China. The article will also analyze the subject, the means, the mechanism and the main purpose of control over cyberspace, with review of its actual effects and defects.1. Criminalization and Penalization of Cyber CrimeThe "chance encounter" of communist China based on its ancient land and people with the information network had multiple potentialities of changing the politico-social order, which were unexpected and unprepared events in the late 20th century. According to official statistics, to the end of 2014, the number of Internet users in China reached 649 million and the number of mobile Internet users reached 557 million (China Internet Network Information Center, 2015). The use of mobile instant message apps had grown steadily, attracting 91.2% of the mobile Internet users (ibid.). Cyber security accidents and cyber criminal cases are both increasing stubbornly (The National Computer Network Emergency Response Technical Team/Coordination Center of China, 2014). Crimes and criminals come in all varieties on the Internet, ranging from the catastrophic to the merely annoying (Icove et. al., 1995). Therefore, defined broadly, the term "cyber crime" could reasonably cover an extensive variety of criminal offences, activities, or issues. In China, the term has been the same from the beginning, pronounced as "jisuanji fanzui" (computer crime). Now, the term more frequently used is "wangluo fanzui" (network crime). Nevertheless, there has never been an official term for it. The crimes promulgated in the Penal Law of China are more complicated, because the Penal Law itself did not give simplified names to any offences. …
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网络空间规制:中国网络犯罪法分析
近二十年来,由于数字网络的广泛使用,人类和社会景观发生了迅速的变化,数字网络将遍布世界各地的个人、机构、企业和机构联系在一起。信息的创建、存储、处理、传输和检索日益便利,使静态和动态过程中的数据量增加,虚拟通信得到改善,社交网络得到发展,同时风险、威胁和危险也成为不容忽视的问题。中国历史背景下的信息系统被视为古代领土上的现代工具,这自然不足为奇。事实上,许多国家在信息时代开始时都面临着类似的挑战,当时它们困惑于如何从信息系统的普遍使用中获益,同时避免不受监测的用户、不受审查的信息、不受检查的通讯、不受控制的活动和未经请求的访问所产生的消极的政治和法律影响。这种潜力也侵蚀着中国长城的基石。此外,犯罪现象向信息系统支持的网络空间的迁移由于其高速扩张而引起了越来越多的关注(Li, 2008;李,2009)。1997年的《中国刑法》(通常被翻译为《刑法》,但更准确的翻译应该是《刑法》)为网络犯罪定罪量刑提供了基本的标准和准则。在一系列法律法规和行政法规的辅助下,初步形成了遏制多种形式网络犯罪在网络空间蔓延的法律法规体系,形成了“新世纪瘟疫”。在过去的二十年里,新的和相关的法律法规的爆炸式增长反映了社会在现代化背景下对这一古老现象的关注,以及与之斗争的努力。然而,目前阻止和纠正网络犯罪的方法是否成功仍不确定。在接下来的章节中,本文将回顾中国建立网络犯罪法律框架的过程,考察中国应对网络犯罪的法律法规的特点,并分析中国通过控制网络空间来预防网络犯罪的政策。文章还分析了网络空间管制的主体、手段、机制和主要目的,并对网络空间管制的实际效果和缺陷进行了评述。基于古老土地和人民的共产主义中国与信息网络的“偶遇”具有改变政治社会秩序的多重可能性,这是20世纪后期的意外和未准备事件。据官方统计,截至2014年底,中国互联网用户数达到6.49亿,移动互联网用户数达到5.57亿(中国互联网络信息中心,2015)。移动即时通讯应用稳步增长,吸引了91.2%的移动互联网用户(同上)。网络安全事故和网络犯罪案件都在持续增长(国家计算机网络应急技术小组/中国协调中心,2014)。互联网上的犯罪和罪犯种类繁多,从灾难性的到仅仅令人讨厌的都有(Icove et al., 1995)。因此,从广义上定义,“网络犯罪”一词可以合理地涵盖各种各样的刑事犯罪、活动或问题。在中国,这个词从一开始就是一样的,发音为“电脑犯罪”。现在,更常用的术语是“网络犯罪”。然而,它从来没有一个正式的术语。中国刑法中所公布的罪行更为复杂,因为刑法本身并没有对任何罪行给予简化的名称。…
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来源期刊
CiteScore
2.60
自引率
40.00%
发文量
0
审稿时长
16 weeks
期刊介绍: International Journal of Cyber Criminology (IJCC) is a peer reviewed online (open access) interdisciplinary journal published biannually and devoted to the study of cyber crime, cyber criminal behavior, cyber victims, cyber laws and cyber policy. IJCC is an unique Diamond open access, not for profit international journal, where the author(s) need not pay article processing charges / page charges and it is totally free for both the authors and the audience. IJCC will focus on all aspects of cyber/computer crime: Forms of Cyber Crime, Impact of cyber crimes in the real world, Policing Cyber space, International Perspectives of Cyber Crime, Developing cyber safety policy, Cyber Victims, Cyber Psychopathology, Geographical aspects of Cyber crime, Cyber offender behavior, cyber crime law, Cyber Pornography, Privacy & Anonymity on the Net, Internet Fraud and Identity Theft, Mobile Phone Safety, Human Factor of Cyber Crime and Cyber Security and Policy issues, Online Gambling, Copyright and Intellectual property Law. As the discipline of Cyber Criminology approaches the future, facing the dire need to document the literature in this rapidly changing area has become more important than ever before. The IJCC will be a nodal centre to develop and disseminate the knowledge of cyber crimes primarily from a social science perspective to the academic and lay world. The journal publishes theoretical, methodological, and applied papers, as well as book reviews. We do not publish highly technical cyber forensics / digital forensics papers and papers of descriptive / overview nature.
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