New China Criminal Legislation against Cybercrime in the Common Internet

Criminal Legislation against Cybercrime in the Common Internet

Provisions on Cybercrime in China criminal Law
II. China criminal

procedure law on Cybercrime
III. Provisions on Jurisdiction and International Cooperation
C. Conclusion

has been changing along with the time.
China moved back

to the normal route in 1980s, which made the application of Computer in China later than that in the west world, so did even much more late the application of Internet.
Before 1994, most of the crimes violate the computer system without network or use them as its tools.
In 1994, Internet entered into China.Computer crimes in China begin to have two new characteristics:
Internetization of crimes
Cybercrimes in economic field happened much more frequently.

Cybercrime in China

field and has formed an industrial chain with different divisions.

Many

criminals use the network resources outside China to commit Cybercrime:
over 90 % network sites, which were used to committing fraud, phishing, pornography crimes and Internet gambling, locate their server system outside China.
over 70 % Botnet control sides were set up in foreign countries.

Resource: Statistics of Cybercrime by China Ministry of Public Security in 2010

on Cybercrime were amended frequently:
In 1994, first law on computer

crime: Ordinance on protecting the safety of computer system.
In 1997, 2000, 2009 China Criminal Law was amended to increase new Cybercrimes
In 2011 China Supreme People’s Court and Supreme People’s Procuratorate issued the judicial interpretation on Cybercrime.
China Criminal Procedure Law responses to Cybercrime slowly.
There is no rules on collecting electronic evidence or admissibility rules relating to electronic evidence.
China judicial practice goes ahead of criminal procedure law.
Neither China make agreement on cooperation of combating Cybercrime with foreign countries, nor join any international convention.

B. China criminal legislations on Cybercrime

prescribed :
illegal access:
illegal invading the computer system in

the fields of State affairs, national defense construction or sophisticated science and technology.
illegal obtain computer data:
illegal invading the computer system that is not belong to the computer system described above or using other technical method to obtain computer data in the computer system.
illegal controll computer system:
illegal controlling the computer system.
provide computer program or tools for illegal accessing or controlling computer system:
destruct computer system:
destructing the functions of computer system or computer data in the computer system, which results in the failure of computer system.

B. China criminal legislations on Cybercrime

of China network economy, the criminals transfer, purchase or help

to sell illegal acquired data or control of computer system, in order to seek illegal interests.
The criminals shall be convicted and punished according to provision in Article 312 of China Penal Code, which prescribes the crime of concealing illegally acquired goods.
If the ISP or advertising company willfully provide for criminals of Cybercrimes the technical support or financial help, they shall be convicted and punished as the accomplice.

B. China criminal legislations on Cybercrime

The aforementioned provisions reaches and goes beyond the standard

set by Council of European Union Framework Decision on attacks against information systems,
They reach most of requirements of Council of Europe Convention on Cybercrime.

B. China criminal legislations on Cybercrime

no independent criminal evidence law in China.
Only few judicial interpretation

prescribe the rules on electronic evidence. for example,
Provisions on the problems related to examine and identify evidence in the death penalty cases
Provisions on the judicial problems related to Internet gambling cases
The rules in other law field such as civil law, administrative law and judicial interpretations in fact play the role of instructing the police to collect electronic evidence and influencing the decision of Judge.

B. China criminal legislations on Cybercrime

retention of electronic data, China Internet regulations prescribe that ISP

should record and save electronic data and provide them to the authorities if they are required.
It is not a criminal investigative measure, but it plays key role in the process of investigation to Cybercrime

On the measure of copying and detaining electronic data, now new judicial interpretation in 2010 prescribed special measures to copy, collect and preserve electronic data.
Before 2010 electronic data was treated as video and voice data and was detained according to the rules prescribed to video and voice data.

B. China criminal legislations on Cybercrime

the draft of new amendment of China Criminal Procedure Law,

which will be passed in 2012, prescribed electronic evidence and technical investigative measures, which include the electronic surveillance.
Now there is no measure of real time collecting electronic data in China criminal procedure law, but electronic surveillance is used in the criminal investigation of serious crimes.
The electronic data that is collected by using electronic surveillance cannot be used as evidence in the court, because it is not the evidence prescribed in the criminal procedure law, so they can only be used to find other evidence such as oral statement.
The provisions of the Draft are similar to the related legislation of foreign countries and the Convention on Cybercrime.

B. China criminal legislations on Cybercrime

that the units and persons should truthfully provide evidence.
These

provisions are similar to the related regulations in the Convention on Cybercrime.

2. Rules on adopting electronic evidence
Now there are no rules on adopting electronic evidence.
Chinese judges adopt the electronic evidence according to the common rules on evidence.
Only few new judicial interpretation prescribed the principle and rules on the legality of the electronic evidence.
Neither is there rule of probative force of electronic evidence, judges make free decision on the probative force of electronic evidence
Rules on probative force of electronic data in other law field affect the chinese judges to make their decision.

B. China criminal legislations on Cybercrime

slowly. In the cases of Cybercrime, the special regulations in

the China criminal procedural law, administrative law and judicial interpretation play the similar role as the related procedural provisions in the Convention on Cybercrime, and in majority part they are already in harmony with them.
On the aspect of the force, operability and balance between controlling crime and protecting civil right, China criminal legislation still should be improved.

B. China criminal legislations on Cybercrime

special provisions on jurisdiction of Cybercrime in China Penal Code,

for Cybercrime Article 6 to Article 12 of China Penal Code are applied.
If the place of the act or the consequence of Cybercrime is in China, China Penal Code should be applied.
If Chinese outside of China commits Cybercrime and the highest penalty of the crime is less than 3 years, China Penal Code may not be applied.
China legislation is in harmony with the Article 22 of Convention on Cybercrime and Article 10 of Framework Decision mentioned above, which make sure that Cybercrime in China can be ruled absolutely.
.

B. China criminal legislations on Cybercrime

countries or international treaty that prescribed the handling mechanism on

the Cybercrime cases, in which more than one country have the jurisdiction.
On the aspect of judicial cooperation on Cybercrime, there is not special judicial cooperative mechanism between China and foreign countries or international organization.
In special transnational Cybercrime cases, China criminal investigative authorities have cooperated with foreign authorities in the field of criminal investigation and help.
From 2004 to 2010 China authority help more 40 countries in more than 700 Cybercrime cases.

B. China criminal legislations on Cybercrime

makes the harmonization of legislation of all countries necessary.

The legislation

standard set by Framework Decision mentioned above becomes the basic standard which many country’s legislations have already reached, Convention on Cybercrime represents the higher legislation standard, so the countries who reached the later standard are less.
The progress of harmonization of criminal legislation against Cybercrime cannot be quick.

C. Conclusion

effect on the countries outside of European.
Convention on Cybercrime is

only a response to Cybercrimes in the countries who participated in the drafting of the convention. Conditions and programs are hard to achieve after the convention became effective
Those countries, which are outside of Europe and have not the relationship of ally with European countries, for example China and Russia etc., are not the parties of the convention.
CoE can not solely lead the progress of harmonization of criminal legislations against Cybercrime, need work together with worldwide international organization such as UN, to push the far-reaching project of harmonization of criminal legislation and judicial cooperation system against Cybercrime.

C. Conclusion

faces the same challenge from Cybercrime.
Now China Penal law on

Cybercrime reaches and goes beyond the standard set by CoEU Framework Decision, and in most area reaches the requirement of standard set by Convention on Cybercrime.
On the aspect of criminal procedure law, now besides the measure of expedited preservation of stored electronic data, the legislation of other measure on collecting electronic evidence will soon reach the requirement of Convention on Cybercrime.

C. Conclusion

did not reach agreement with foreign countries and did not

join the relevant international treaty.
That make China criminal judicial authorities face difficulties when they handle with transnational Cybercrime cases.
China left outside of the international judicial cooperation system on combating Cybercrime, leads to a lot of transnational Cybercrimes move from other countries into China.
The situation will not only do harm to safety of China network society, but also make China the springboard to attack computer systems of foreign countries.

C. Conclusion

be efficiently controlled unless the extensive international judicial cooperation is

set up.
China, such a great network country, cannot be absent.
China and International organizations especially UN and COE should communicate and cooperate more closely on combating Cybercrime.
One of the choices is building a more extensive new international treaty on combating Cybercrime which is beyond the scope of European countries and in the scope of United Nations.

C. Conclusion