| Fu and Huang’s case of destroying computer information system was selected as the 20 th batch of guiding cases of the Supreme People’s Court in 2018.The case a defendant to pay a certain and Huang for DNS hijacking behavior take ways of driving traffic to hijack the domain name hijacking,characterized by network users intended to visit some navigation website,but because of the router DNS Settings is behavior person to alter,web page will automatically jump to 5w.com navigation website,a network users were forced to access the result of 5w.com navigation website.In the process of case trial,whether traffic hijacking should be considered as a crime and how to characterize it is the focus of controversy.Through the comprehensive analysis of the related concepts of traffic hijacking,the technical mode of the behavior,the social harmfulness of the behavior,and the current situation of other laws regulating traffic hijacking,it is concluded that the traffic hijacking has its legitimacy.Obtaining traffic for profit is the purpose of hijacking behavior taken by the defendant.Although the website traffic has a high economic value,it should not be identified as property because of its characteristics.The network user flow belongs to the property interest to the user,but the defendant did not steal the property interest from beginning to end and intentionally.Therefore,the nature of the act should exclude the possibility of larceny.Traffic hijacking is realized by changing the DNS Settings of network users’ routers.The behavior of the defendant against the computer information system belongs to the behavior of ‘destruction’,but at the same time,the behavior also has the characteristics of ‘illegal control’.Moreover,the defendant has been fully and clearly aware of the illegality of his behavior,and actively pursued the result that the router’s DNS Settings were changed and used by him.Therefore,the defendant’s behavior should constitute the crime of destroying the computer information system and the crime of illegally controlling the computer information system.However,because the defendant has only one act of execution,and the two crimes are in an imaginary overlap relationship,the defendant should be punished with the crime of violating the computer information system with a felony. |
