Research On The Application Of Limitation In Crime Of Computer Sabotage

As a crime stipulated in the 1997 ’ Criminal Law ’,the overall application rate of the crime of computer sabotage has increased rapidly in recent years,and its scope of application has expanded rapidly.Through empirical analysis,it is found that the judicial practice of this crime has obvious expansionary application problems.The expansion of the application of this crime is embodied in the following three aspects : First,this crime eroded some of the traditional crimes implemented by computer;secondly,this crime squeezes the applicable space of some other computer crimes;thirdly,this crime includes some illegal acts that cannot be convicted according to the current criminal law.This not only leads to severe punishment of misdemeanor,but also deviates from the principle of legality.Therefore,this crime should return to the rational position of application of limitation.The expansion of the application of this crime is mainly caused by two levels of reasons.First of all,fundamentally speaking,the scope of the legal interest of this crime is vague.There is not only a dispute between the single legal interest theory and the compound legal interest theory,but also more controversial whether the data security legal interest belongs to the protection of the legal interest of this crime.Secondly,the elements of the constitutive elements of this crime are fuzzy,not only the connotation of behavior and behavior results is unknown,but also the behavior object ’ s data ’ has dual attributes,which provides space for the expansion of judicial application.Therefore,the application of the crime of computer sabotage should be based on the clarification of the legal interests of the crime,and then the elements of the constituent elements should be limited.First of all,we must fundamentally clarify the protection of legal interests of this crime.The theory of management order has the inherent defects of fuzzy and abstract,which cannot provide guidance for the interpretation of the elements of this crime.The compound legal interest theory includes the legitimate rights of users and the normal production and operation order of victims into the scope of legal interest protection of this crime.The content of legal interest is extremely uncertain and too broad.The legal interest of this crime is only the normal operation of computer information system,data security is different from system security,data security legal interest is not within the scope of protection of this crime.Secondly,to limit the elements of this crime.This crime behavior way,the behavior result and the behavior object all has the restriction space,should carry on the restriction under the computer information system normal operation this legal interest instruction to three.First,the behavior of this crime ’ s deletion,modification and addition ’ has its specific connotation.The behavior of increasing the functions,data and applications of computer information systems needs to be necessary to cause the normal operation of computer systems.“Interference” should also have the characteristics of computer technology and direct directivity.The physical interference in the natural environment does not belong to the“interference” in this crime.Secondly,the results of the conduct of the crime should be double-bound,and the results of the conduct that the computer information system cannot operate normally should be limited by the destructive characteristics.In the identification of serious consequences,as far as the scope of the economic loss standard is concerned,economic loss should be directly related to the destructive degree of violations.Economic loss is limited to the direct economic loss caused by the destruction of system functions,data and applications.The expected economic loss indirectly caused by the failure behavior should not be included because it cannot represent the illegal degree of the failure behavior itself.As far as the standard of illegal income is concerned,it is generally used as an element of the amount of crime in the crime of profit-making property and used as an independent judgment standard for the serious consequences of the crime.In fact,it has seriously deviated from the nature of the crime and is not only incompatible with the basic attributes of the crime,but also easily abused by judicial practice,which should be considered for exclusion in the future.Third,the behavior object data for this crime should be limited to data related to the normal operation of the computer information system and,further,to data related to the normal operation of the application.The scope of the application should also be limited to applications that play an important role for the user,and the addition of the application ’s behavior does not constitute this crime if it does not affect the functionality of the computer information system or the original application.