| With the development of Internet technology,the emergence of new types of cybercrime is impacting traditional criminal law theories,and it also poses new challenges to the application of criminal law norms.The "network traffic hijacking" behavior makes the user’s access to the page forced to jump through various technical means,or induces the user to visit a specific website to obtain the traffic that should belong to the original target website.It can be divided into mandatory hijacking and induced hijacking.From the perspective of behavioral characteristics and harmed objects,such behaviors are clearly different from "theft of traffic" and "brushing traffic",etc.,so there should be some differences in legal regulation.In the past,judicial practice tended to adopt civil regulation methods and regarded them as unfair competition behaviors.However,as such behaviors gradually spread and the harmfulness is also expanding,criminal regulations have become necessary.On the whole,the number of related criminal cases of "network traffic hijacking" is very few.These cases differ in specific qualitative and applicable crimes,mainly involving the crime of destroying computer information system,the crime of illegally controlling computer information system,and the crime of illegally obtaining computer information system data.At the same time,there are also theoretical views that the crime of theft or the crime of destroying production and operation should be applied.These differences essentially reflect different understandings of the behavior of "network traffic hijacking" and violation of legal benefits.Judging from the legal attributes of website traffic,it is essentially the website information data.It has limited possibility of management,but it has no economic value,transferability and is not a property in criminal law."Network traffic hijacking" behavior also does not meet the constituent elements of possession transfer in property crimes,so such acts should not constitute property crimes.In fact,"network traffic hijacking" has caused serious violations of the operational security and data security of computer information system.Mandatory "network traffic hijacking" complies with the behavior characteristics of "destruction" and "illegal control" and should be handled in accordance with imaginary competition;Induced "network traffic hijacking" is less harmful and should not be included in criminal regulations.Mandatory "network traffic hijacking" in sentencing should not be based on pure property evaluation elements as the criterion for "serious consequences".Property evaluation elements should be combined with the operating status of the computer information system itself. |
