Criminal law regulation of countering cybercrime in China: State, trends and shortcomings

Abstract

In modern China, cybercrime is becoming more widespread, which has given rise to the need to rethink criminal law at the basic theoretical level. It seems that when countering crimes in cyberspace, it is necessary to shift the focus of cyber-criminal law from the traditional “network-centric” to “data-oriented” and to build a system for the protecting legal benefits of “data centralism”. In addition, the expansion of the objective components of cybercrime should be moderate: certain cyber-violations cannot be qualified as “illegal entrepreneurship”, as this contradicts the principle of legality of criminal law. The content of “knowingness” as a sign of the subjective side of the crime should be rethought: it should include such different forms as: a) the presence of collusion with other persons to assist in the commission of criminal acts; b) lack of collusion between the person providing assistance and the perpetrator, but the previous one, knowing that a particular perpetrator he is going to commit a certain criminal act, provides online support and assistance to the latter; c) online help providers who only have a probable idea of the existence of criminal acts, but do not have a clear idea of the culprit and the type of behavior of criminal acts, and as such there can be no collusion with the perpetrator of criminal acts, only objectively assists the culprit’s act. The theoretical basis for identifying complicity in cybercrime should be adjusted by approving “one-sided” subjective connection. Ultimately, through systematic adjustment and rethinking of the basic theory of criminal law in this area, the gradual improvement of criminal law norms to regulate the fight against cybercrime in the era of information networks is being carried out.