wholesale ethnic tribal jewelry Legal thinking of electronic currency fraud responsibility

shein wholesale jewelry Relying on the development of the Internet, the socio -economic, cultural, and political life is undergoing an unprecedented change, and the various cyber crimes have put forward a comprehensive and unreasonable challenge to this change. This article only put forward its own views only for the use of the new characteristics of fraud in e -commerce activities and based on the position of criminal law, in order to help judicial practice and help the theory of criminal law.

. The new features of E-fraud in e-commerce

The crime of fraud in e-commerce is for the purpose of illegal possessiveness, fictional facts or concealing through the network information system or concealing The truth, the behavior of the large amount of property. In legal forms, the crime of fraud in e -commerce crosses the crime and special fraud in the current criminal law, but in actual life, it is only a form of expression of these crimes.

The traditional fraud crime, using modern network technology, roughly two types: one is to send false information online to deceive the victim's consent to deliver several property to the actor; One category is to enter a specific network information system as other persons, add and enter certain information in the network information system, and allocate all or possessing electronic currencies to their accounts, and then fulfill the behavior. The previous type of behavior is only a renovation of the crime of fraud. From the perspective of criminal law, using the existing criminal law theory can solve the problems. The objective behavior of the latter category is different. It is very different from the crime and special fraud in the criminal law. In order to divide the scientific community, it is different from the previous categories of behavior and convenient discussions. This article refers to the crime of E-fraud.

The main methods are: active skylights, Troyi Trojan, Italian sausage, data fraud, worms, logical bombs, replacement Cracking password interception information and so on. However, the crime of E-fraud is only part of these methods. In order to obtain electronic money, the actor generally does not adopt the method of destroying the information system, but uses the technical weakness in the network to achieve the goal.

The main steps of the crisis of fraud: The first step is to obtain the authority information. The right to information includes access permissions. Obtaining the right to information can not only be inquiring, listened, collected, etc., or technical interception information can be used. information. Some even obtain useful information by analyzing the direction, traffic, communication frequency, and length of the information flow. The second step is to change the information. If you change the order and direction of information flow, increase, delete, and change the content of information. Because the network information system is affected by the force, the operation of the equipment and facilities supported by it is chaotic or an error instruction is issued. As a result, the electronic money on the other person's account is allocated to the account opened by the actor through the network. The third step is to fulfill the information, that is, the actor's spending the electronic currency in the consumption may be exchanged for banknotes. This is because the crime of fraud is the result of the result.

. The network is considered a virtual society, which is extremely important for understanding network crimes. We might as well divide the place where cyber crimes occurred into virtual space and real space. In this way, in addition to suspended criminals, the E-fraud crime activities are manifested as three samples in criminal law: first, preparatory criminals that occur at the real stage If the actor analyzes the documents and paper abandoned by the victim, he sought a password and pass from it. Second, the preparations and attempts that occurred in the virtual space. Third, attempts that happened in the real space and the dislikes.

. The object of the crime of E-fraud

E-fraud and other types of fraud to obtain property. There is a certain meaning to communicate, that is, "people-people dialogue"; and the crime of E-fraud is not, the perpetrator is more through the "people-machine dialogue" method to achieve preliminary purposes. It is precisely because of the technical characteristics of human -machine dialogue that the actor only obtains the number of digital symbols that represent a certain amount of amount, so whether the object of this crime is data records or data vector, or cash physical objects. It is currently no conclusion. When studying the use of computer theft of electronic funds, some scholars proposed that electronic funds should be used as theft of electronic funds. In this way, the object of crime is "the electronic data record that exists in the electronic capital transfer system that represents certain assets of all assets."

The reason is: first, the content of the criminal objects should be continuously expanded with the development of society; second, electronic funds are different from ordinary knowledge information. Through the secretly dialing of the computer to their account, the funds on the victim's account must be reduced accordingly, otherwise the computing opportunity will refuse to run; third, the electronic funds are the same in nature and valuable payment vouchers, price securities, and price tickets. The latter Since it can be regarded as the object of crime, there is no reason to refuse the former as the object of crime; fourth, criminal law and judicial interpretation have stipulated the power of electricity, gas, natural gas and telecommunications services as the object of theft, and electronics should also be electronically. Fund as the object of theft; fifth, the criminal object of the criminal crime of electronic funds is conducive to protecting financial property.

The essence of these reasons is that intangible objects can be used as criminal objects. Indeed, some scholars advocate: "The object of crime is human or physical. Things are objective substances that do not use people's will as a transfer; Things and intangible objects. "

This seems to be able to prove the above point of view. Because in the final analysis, electronic currency is also an invisible object like electric power, gas, natural gas and telecommunications services.

In the past, the author believes that the object of the crime is the carrier of the electronic currency, such as electronic bills, electronic wallets, electronic money clips, etc., but now carefully consider It is the criminal object of the crime. The reason is that: First, if you grasp the invisible objects as a criminal object, you almost look at the things in the category of criminal law and philosophy. In this way, the scope of the criminal objects is undoubtedly expanded. The intangible objects are also different in the legal attributes and value attributes. Taking electronic currency symbols and gas as an example, the specific performance of the former is a specific value loss or loss, and the latter is not enough to indicate the value loss or loss of the corresponding object's value or loss After finding out a problem with their account funds, the person who can adopt the notification hair formula can be blocked by the intention of the perpetrator. It is said that the former is the object of crime, but it is difficult for the latter and the former to analogize it as a criminal object. Second, if the electronic currency symbol is used as the object of the crime, it will lead to a conclusion that is completely opposite to the crime of general fraud. The traditional criminal law theory believes that "the object of criminal object refers to the objective person or specific object of the objective existence of criminal behavior stipulated in the provisions of the Criminal Law."

Object damage. If the electronic currency is the object of criminal, that is, the actor has the electronic currency symbol, which causes the results of the harm, that is, the crime is not the same. As mentioned earlier, the crime of E-fraud is an isolation offenders, and the time and place between the behavior and the results of the actual harm may be inconsistent; in addition, the crime is the result of the result. The key to the criteria for fraud is that the perpetrator has obtained a large amount of property, so the electronic currency symbol is used as the object of the crime, and the standard of criminals will be advanced and the scope of punishment of criminal law will be expanded. Third, the author believes that the crime of E-fraud is necessary to distinguish between criminal objects and behavior objects. As the object of behavior, it is the preliminary purpose that the actor wants to achieve during the act of acting. It is a symbol of the criminal object. The behavior of this crime is electronic currency or digital symbols. There is also a difference between electronic currency and electronic currency payment methods. The common types of electronic money payment means in common business activities are the following types:

1, electronic ticket certificate. Common electronic tickets include: user opinion and product demand survey forms, product buyers' information feedback, and maintenance or guarantee information feedback forms, product (product) quotation application form, quotation, and order list. It should be noted that electronic data exchange (EDI) is constantly improving and continuous development. The purpose is to completely realize the electronicization of ticket transmission, which is also known as paperless trade. At this stage, due to traditional concepts and technical restrictions, it can only be used at the same time of electronic tickets and paper tickets. But if you focus on the long -term, the author must not deny the significance of electronic tickets to crime. In fact, in some countries and some economically developed places in many countries and my country, the paper ticket has been reduced from the previous unique or main status to a secondary or auxiliary position, which can explain the problem.

2, electronic money clip. It is issued through the certification center of the network system, which includes certified credit cards and ID cards. Users can complete the operation anytime, anywhere, and the information about individual, credit card, and password information about individuals, credit cards, and passwords can be transmitted directly to the bank for payment and settlement.

3, smart card. It can directly pay small cash payment on the network, and can download cash from the bank account through the Internet account to ensure the convenience of electronic cash use. It can also add a password to ensure the safety of use. In addition, it also has functions such as identity identity and distribution of government welfare. If you use a smart card, you can verify the identity of teachers and students; it can also be used as an electronic currency to pay for dining, copying, laundry and other costs, and even as the key to the dormitory. In the United States, it is estimated that 80%of financial transactions are paid in electronic.

4, electronic bill. The bills include bills, votes and checks. Electronic bills are mainly electronic checks. As early as 1995, some large banks in the United States and computer companies jointly developed and publicly demonstrated the electronic check trading system using the Internet, and predicted that "this system may cause a revolution in bank transactions." Singapore has also developed the first E -check system in Asia in recent years. In our country, because of the constraints of the bill law implemented in 1996, the electronic bills are still blank. However, the author is convinced that with the establishment of the China Financial Certification Center and the determination of the status of digital signatures in electronic payment, coupled with the development of network technology and the enhancement of practical needs, electronic bills will definitely become an important payment method in the future.

5, electronic bank account. Electronic banking provides enterprises or individuals with information query, currency payment, savings business, settlement, online investment, wealth management management and other businesses. Among them, online payment such as savings and fund allocation of individuals and corporate enterprises must pass the account of the right holder on electronic banks. The author may wish to think of the electronic bank account as the basis for realizing the transfer of electronic money.

This payment methods are generally tangible, and they are the carrier of electronic currencies. In other words, without these carriers, electronic money cannot be achieved. It can be said that the perpetrator's E-fraud crime must rely on these carriers. But they are not the object of crime. Because they do not directly reflect the violations of the criminal object of property relationship or economic order. If the actor steals the smart card between others and the interval between him to use or use, during this period, the original cardholder can report the loss to avoid property damage; or the actor does not use the smart card, the property of the right holder, the property of the right holder will be No loss. Therefore, it is not the carrier of his criminal responsibility for the perpetrators to investigate the criminal responsibility, but that he does not use the practical possibility of electronic currency, and the size of his property rights reflected in the electronic currency.

. The unfinished form of the crime of E-fraud

(1) Starting behavior of acting.

The start of crime is the boundary between the preparation of crime and attempt. It refers to "the criminal person's act of implementing the specific crime stipulated in the provisions of the criminal law."

So in the field of E-fraud, when does the act of acting start from? The author believes that first of all, the actual link behavior should be excluded. The reason is:

First, the actual link behavior does not have the characteristics of behavior. The act of implementing behaviors, that is, began to implement the specific constituent behavior of the criminal law division. When judging it, we must consider not only the specific guilt stipulated in the law, but also the content of the behavior and its form.

, that is, uniform inspections of the form of behavior and substance in behavior and legal. The actual link behavior does not have the conditions to be close to the object of the crime, and it is impossible to harm the object of the crime, so that it does not have the harmfulness of the behavior; and the behavior at this stage usually creates conditions for the behavior of the virtuality link , More in line with the characteristics of criminal preparations.

. The second, the actual link behavior as the spirit of violations of legislation, Article 196, paragraph 3 of the Criminal Law stipulates: "If the theft of credit cards and use it The provisions are convicted and punished. " With this rule, the author can infer that the perpetrator only stole the credit card and not used it. It should not be used as a criminal theory, at least regardless of the completion of the crime. At this time, the property rights of the right holder were not substantially damaged, and at most it was threatened, the threat was transformed into a actual harm and the actor must perform the virtual link. Therefore, the provisions of the criminal law are correct. It can be used as a reference to similar situations. Based on the same reason, theft or deception of other people's electronic signatures, digital passwords and other behaviors, if they are treated with criminal behavior, they are contrary to the spirit stipulated in the criminal law.

Third, the actual aspect behavior is used as the embarrassment of judicial applications. If the actual behavior behavior is used as a behavior, it will undoubtedly consider the preparation of the crime in advance, so as to treat some unrelated behavior as a criminal act, such as forging smart cards, which is a preparation behavior. The behavior of the previous purchase materials will be used as a criminal preparation, and its criminal responsibility can be investigated. The legal significance of this behavior is not significant, and it is not appropriate to treat it as a crime. In addition, it will be considered in advance, so is the behavior of the virtual stage of the behavior? If it is, there are two natures of behavior, which will naturally support the theory of criminal law and does not meet the provisions of the criminal law; if not, it can only be used as a post -implementation behavior, and there will be no negative crimes. The actor has no behavior of implementing the virtuality, and it must still be regarded as a crime. This is obviously unreasonable.

Secondly, the initial behavior of entering the network system is not an act. Although the time to enter the network system is very short to complete the online crime, sometimes it is only a few seconds, but it is necessary to correctly understand the nature of this behavior. One of the reasons why it is not a behavior is that the behavior does not have the nature of the behavior. In order to complete a specific crime in the network, the actor generally enters a specific information system. Before that, he may have to log in to other information systems with auxiliary functions. The two reasons are that from the perspective of criminal policies, it is not considered that these actions have the nature and help prevent the actor's further implementation of criminal acts. If the behavior at this stage is only preparation, it will undoubtedly give the perpetrator a considerable time to suspend the crime, and to promote incompleteness of his criminal intent. On the other hand, this also helps the judicial organs to fully identify the subjective mentality of the perpetrator and provide more credible evidence for punishing crimes.

This believes that only the behavior of the virtuality link implemented after entering a specific information system is the behavior. The reason is: 1. The behavior has the actual nature of the criminal object. If it is not affected by other factors, it will be implemented; Essence

(2) About the attempt to crime

The standards for distinguishing crimes and attempts. There are many views in the academic community, such as "theory of the purpose of criminal purpose" and "the result of criminal results". , "Criminal constituent elements" and so on. Although the last view is temporarily dominated, other different views still exist.

"The Essentials for the Constitution of Crime" In order to more accurately identify the completion of the crime, further distinguish the two cases: result of the results of the results (including dangerous criminals) and acting prisoners (including actions). In the form of E-Fraud, first of all, there are two situations: confession and behavior.

For results, the statutory hazardous result may occur or a statutory dangerous state is the standard for criminal dislikes. But does the result happen in the virtual space or in the real space? If the theft of electronic currencies is the result of this result from one account to another, or is the result of the real property of the right holder reducing this result? The significance of this problem is self -evident. The author advocates that the results of the actual space should be used as the standard of crime. The reason is:

First, this is consistent with the spirit of modern criminal law. Modern criminal law is based on the function of protecting the society and taking into account the function of human rights protection. In order to achieve this purpose, in criminal legislation, there is no one -size -fits -all method, but different types of criminal types. In terms of successful boundaries, some require specific hazardous results. Some require a specific dangerous state. Some behaviors need to be implemented, and some even require only a certain move. This is because the differences in social interests reflected in various social relations can balance the function of the criminal law. The object of E-fraud violations does not surpass the category of general crimes. Therefore, in terms of grasp of the results, if it deviates from the requirements of other criminals and determines the standard, it will destroy the balanced point of the current criminal law. In contradictions.

Secondly, the results of the virtual space are isolated in time and space. The results of the virtual stage are only manifested as a change in the right to record the text or information and data. Whether it must harm the rights and interests of the right holder, it must also rely on the actor to further deepen the behavior, resulting in the fact that the right holder's real property violates it, and thereby reality The actual results, and the method of deepening behavior can be completed by the perpetrator, it can be completed by others, or it can be implemented by tools. Only at this stage, the actor can also make new actions. For example, re -acting, cancel the virtual results caused by the previous behavior, and restore it to the original state. In this way, it is difficult for the right holder to notice that the rights have been threatened, and the order of legal interests does not cause confusion. From the perspective of criminal policy, it also helps the actor to suspend the crime.

third, and most scholars are worried. If we deal with cyber crimes according to the above methods, illegal acts that are not punished in the network system are tantamount to encouraging actors to crimes. There is no need for worry. The author can deal with the crime of the preparation of the crime and the destruction of the computer information system, which is arranged based on the principle of implication of criminal treatment.

For the behavior of the behavior, as long as the actor's practice has the conditions prescribed by the criminal law, it constitutes the success of the crime. So we can't talk about crimes.

. The boundary score of fraud and theft

The crime of fraud and theft of fraud and theft according to the traditional criminal law theoretical world; Different views have also appeared in the qualitative of the apex, checks, and other blank value vouchers and then used. Some provisions made after the promulgation of the New Criminal Law and the judicial interpretation clarified some of the entanglements, and the differences in the difference between theft and fraud should be clearer. For example, Article 196 of the Criminal Law stipulates: "If the theft of credit cards and use it, conviction and punishment shall be determined in accordance with the provisions of Article 264 of this Law." Just with the advancement of science and technology, the original simple problems have become complicated in the field of network finance.

The credit card is the earliest electronic currency carrier. Today, the carrier of the electronic currency also includes other electronic money clips, electronic bills and smart cards. So the means of crime are more complicated and diverse. For example, in Japan, there are cash automatic cash withdrawal machines (ATMs) of nationwide networks and banks. The popularity of ATM and credit cards is very high; crimes against ATM cards are also quite rampant. After stealing the ATM card of others, he decippped the password, then extracted cash, developed to falsify the owner ATM card, and then developed to the "online crime" that directly stole account funds through the computer information system connected to the bank through the network.

The method of crime that actors often make crimes, that is, monitor the victims somewhere somewhere, take the opportunity to steal its account and password, and then use these stealing accounts and passwords online to be the victim The electronic currency is allocated to its account.

The difficulty is the occasion of the fraudity of the virtuality link and the theft bidding. The virtuality link occurs in the network, and the realistic link occurs in the real society.

In order to prevent network crimes, a set of security technologies are generally set up in the virtual link. The first is the password mechanism. Information encryption is the most commonly used security trading method. It can prevent threats such as unauthorized leakage, confrontation, and illegal access to database stealing information in transmission and storage. The second is digital signature technology. It is a set of passwords. When sending information, the sender sends this set of passwords. After receiving the information, the recipient will use the laws agreed by the two parties to determine the identity of the sender. In essence, it is similar to the signature on the paper. It can confirm that the information is issued by the signature, and it can prove that the information does not make any modifications when it is issued to receive. The third is the timestamp. The date of the document signing is as important as the signature. In electronic transactions, digital timestamps can provide security protection for electronic files. The fourth is the certification mechanism. It is used to confirm the authenticity of the other party's identity. The fifth is the firewall. This is a fairly defensive technical measure. It is the only information channel between different network or network security domains, which is responsible for preventing external attacks. However, these security technologies are not perfect, and each technology has flaws to follow, which provides opportunities for online fraud. For example, the digital signature of the electronic bills of others, or changing the text content of the electronic bill, and then cheating electronic cash at the electronic bank.

The actor in order to obtain or stole the electronic currencies of others, in the virtual space, there are two types of ways: one is to destroy the normal operation of the information system and take the opportunity to achieve the goal; the other is to impersonate other other The right holder, deceives the trust of "system managers", obtains or uses the electronic currency of other rights holders. The possibility of achieving the purpose in the first way is almost zero in the network field, so the second method is common. In this way, it must be used to use deception. In order to make the deception more effective, the real information such as the password and signature of the right holder as soon as possible is undoubtedly pursued by the perpetrator. Some actors adopt a technical method to break the password of the person in the network and collect their relevant information; some also adopt traditional methods of theft to obtain these key information. The latter situation occurred the phenomenon of theft and fraud.

If this, based on the provisions of my country's criminal law, combined with the traditional criminal law theory, and fully consider the characteristics of electronic currency, distinguish whether a certain behavior belongs to the crime of theft or fraud. It must be considered in reality. The nature of the link. Because through the previous analysis, the author can see that most of the behavior of the behavior of the virtual space has the nature of fraud, but if the crime of crime of online economy is used, it is obviously inconsistent with the provisions of the law; in addition, from the legal perspective The crime of theft is a felony for fraud. When two kinds of competition occurs, it is necessary to treat it as implicated crime, and it should be the crime of theft. Furthermore, if the behavior that occurs in the realistic link is fraud, the behavior of the virtuality links in which the virtuality link will constitute a crime of fraud; the behavior that occurs in the realistic link is theft, and the behavior of the virtuality links is It constitutes the crime of theft.

Specifically: 1. For smart cards that are not set without settings, or the behavior of a smart card setting a password with multiple times, as long as the amount reaches a large amount, it constitutes the crime of theft; For the use of smart cards three consecutive times a year, it should be considered that the "multiple theft" stipulated in Article 264 of the Criminal Law constitutes the crime of theft; The behavior of theft constitutes the crime of theft; Larger behavior constitutes a crime of fraud; 6, deceives the accounts and passwords of various payment methods of others, and then use these account passwords to set the electronic currency in the network to form a crime of fraud; The person's password is broken, the relevant information is set, and then the act of picking up the electronic currency constitutes the crime of fraud. 8. Check the password of the smart card, and then use the behavior of fraud; 9. The password of the theft of the smart card is used to form a crime of fraud.

. About electronic signatures

The main means to determine rights and obligations in e -commerce are electronic signatures. It sometimes enters the key to specific information systems, sometimes using the barrier of the network information system, and sometimes the mark of network activities. Electronic signatures are a set of specially arranged numbers. The development of electronic signature technology will have a more profound impact on the interpretation of criminal law interpretation of falsification, altering traditional content, and financial fraud crimes.

In the past, in the theory and judicial practice of criminal law, forgery was interpreted as imitation, and the transformation was to change the real appearance or content. After the promulgation of the "Bill Law" in my country, there are obvious insufficient existence. At that time, in the theoretical community, forgery of bills refers to the behavior of the actor's imitation of the real exchange, the form, the pattern, color, and format of the ticket, the form, the pattern, and the format. Refers to the actor on the basis of the real exchange, the ticket, and the check based on the real material, and the main contents of the main content of the bill can be changed by the methods of editing, digging, covering, and altering.

. However, the response of fake bills is to imitate the signatures of others, pseudo the seal of others, and steal the real seal of others; On the bill, changing other records other than signing, so as to change the content of the rights and obligations on the bill.

This can lead to falsifying the alternative bills is just a typical bill fraud, not independent of the falsification currency category in addition to bill fraud. Therefore, the author believes that the provisions of the criminal law are not appropriate. But knowing the crime on the Internet, even according to the latter's point of view, there will be difficulties in answering.

The previous bill certification mainly signed by handwritten. The signature writing is very casual, and the Chinese block characters are easy to imitate. The same is true for stamps, and there is almost no official seal that cannot be engraved. The system uses a computer to automatically identify the signature and seal seal, which improves the efficiency of work, but as long as the voucher of the authenticity of the bill is still a signature stamping, there must be illegal elements to try to imitate the signature and private seal. Reconstruction and coating bills. In recent years, some criminals have adopted computer scanning and computer engraving techniques, which has enabled the private seal to achieve electronic and automation, and can be faked. Therefore, the seal automatic identification system is the same as the signature stamping system. It is definitely not the direction of the future development of the bill certification system. Therefore, the significance of the password mechanism and electronic signature in network activities has been given new content. For example, the receiver will prepare the password in advance according to the bill number, and pass it to the ticket to the ticket. Each of the issuer issues a bill, and pastes the password according to the bill number. The receiver verifies the authenticity of the bill based on the corresponding relationship between the bill number and the password. In order to prevent falsification of bills. In financial institutions, the transformer printing system, also known as the password payment system certification bill. It adopts a traditional single -key password system. The issuer and the receiver should first agree on a key, which will be preserved by them. Each issuer issued a bill, he first digitized the contents of the bill, and then he used the preserved keys and link encrypted messages to get a identification code. Ticketor. The receiver repeats the same calculation process and gets another identification code. As long as the two identification codes are the same, the bills are real. Since the identification code is a function of the key and packets, any change in the message will change the identification code, and the differential code cannot be calculated without using the key. In this way, traditional explanations have almost no application value. At this time, it is difficult for fake rights to be difficult, but it will be difficult to alter and traditional forgery. It will be difficult.

This believes that rather than the falsification of electronic signatures, Benn said it is the fraud of electronic signatures. Only the actual consequences of the actor's electronic signature and the electronic signature of the right holder must have the same consequences of legal benefits. In order to achieve this result, the actor must do everything possible to learn about the electronic signature data of the right holder, and its method can only be manifested as the characteristics of fraud.