Research on the restriction of "new" pocket crime under the background of the Internet- from the Amendment of Criminal Law (IX)

Abstract

With the release of the criminal law amendment (9), refusing to fulfill the obligation of network security crime and helping information network crime, as two important new charges, have improved the criminal law because the responsibility of "network service provider" was introduced for the first time in the field of criminal responsibility. However, in the implementation of relevant charges, due to its limitations in legislation and the similar problems in judicial practice, the scope of related crimes is improperly expanded forming the so-called "new pocket crime". Based on this situation and the legislation in Germany, combined with our own judicial practice, the systematization of related charges should be promoted in network service providers on the legislative level of special legislation. In the judicial level, specification of "knowing" standard and expanding the application of interpretation should be adopted. These two ways can realize the reduction of pocket crime and produce positive effect on the disadvantages of the rule of law construction in China. This paper proposes the method to solve the restriction of pocket crime from two aspects. At the legislative level there are three initiatives. Firstly, special legislation network service providers should be implemented. Secondly, the criminal law charges should be set systematically based on the typing of network service providers. Lastly, the criminal responsibility should be apportioned hierarchically based on the typing of network service providers. As for the judicial level, the identification standard of "knowing" should be clarified in judicial practice. In the process of applying the extended interpretation, it is important to adhere to the same kind of interpretation. In addition, the judicial authorities should organically combine the crackdown on crime with the development of the Internet in the process of cracking down on cybercrimes.