On the Predicate Nature and Legislative Boundary of Data Offense from the Perspective of Information
The essential reason for the mess of theoretical research into data offense is that it is difficult for the theoretical circle to abandon the path dependence of"confusing concepts of data and information".The concept confusing of data with information does not conform to the existing laws,and leads to the lack of clarity of the relationship between data offence and information offence,thus at this moment when China has not established the data offense system yet,the relevant research into data offense is relatively chaotic.In this regard,it is advisable to start with the review of nature of data offense in terms of the criminal law and abandon the traditional research convention that the first thing is to develop the connotation of legal interest of data offense,and then to reach a logical conclusion that"the nature of data offence in terms of criminal law is that it is the predicate offence of information offence"through the distinguishing data and information in terms of objective attribute and legislation.Under this premise,it is feasible to further clarify that the legal interest of data offense should be the confidentiality,availability and integrity of data,which can also support the legislative boundary in building the data offense system.Specifically,on one hand,the following principled requirements should be considered at the time of legislating relevant data offense:separating data offense from computer information system offense and setting the former as an offense based on abstract danger,and setting up specialized texts in the criminal law to provide guidance on the determination of the number of offenses with data offence and other offence involved;On the other hand,the newly legislated data offenses should also be limited to a certain scope which means that it is imperative to not only strictly control the number of intentional crimes,but also exclude punishment for negligent act of data offence.
Data OffenseInformationPredicate NatureData SecurityLegal Interest
万方数据
维普
