Interference with Computer or Related Equipment Crime-Legislative Question Research

• Main Authors: Chun-Yueh Lu, 陸峻岳
• Other Authors: Wei-Chun Hsu
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/86778588116360613764

碩士 === 中原大學 === 財經法律研究所 === 99 === The legal articles design of our country’s criminal law system is categorized on the basis of types and scopes of the intended protection of "legal interests". The design of the article’s legal elements is not specifically restricted to the "approach" of its implementation, or to the "infringement state" of the infringed object. According to the "role" played by "actor" within a crime, and the "direct" or "indirect" influence as well as the "importance" of act contributing to the infringement, there will be different degrees of punishments applied to the so called "principles" and "accessories" , the "preparatory acts" and the "commitment". On the other hand, according to the “competing rules of the laws”, when it comes to more than one criminal article applying to a single case, people should choose between the multiple laws only according to the “number” of the “act” and the “infringement result”, but not the "approaches" employed by the defendant. The design of Criminal Code Article 360 in protection of legal interests adopts the principles of "comprehensiveness" and "for both individuality and society", and the design of composing elements requires the crime be committed with "non-physical" approach, and excludes application of the physical damage. Such legislative design will somewhat affect appropriate application of legal provisions, design of punishment degree and the competing rule of laws. For example, on the appropriate application of legal provisions, implementing " physical" criminal approach or leading to physical damage will be excluded, but that results in non-fulfill of the legislation purposes. In addition, in the design of punishment degree of "sentencing", if "the same" computer interference "criminal acts" infringe whether personal "life" legal interests and personal "property" legal interests; or "personal" property legal interests and "social" property legal interests, "same" standard will have to be applied for the punishment "sentencing" considerations, which is consequently unfair. With respect to the " competing rules of the laws ", the design of the 36th Chapter, including Article 360, may leads to a dilemma in deciding which article to choose, hence making it impossible to decide the appropriate punishment degree of "sentencing". Take it as an example, the criminal act that changes electromagnetic records and at the same time causes interference of computer operations will simultaneously constitute criminal offenses against Article 360 and Article 359, but judgment based on the " competing rules of the laws” will make both articles unable to clearly explain and specify the contents behind the intended protection of "legal interest", consequently unable to clearly determine the results of the competing relationship between the two, and accordingly unable to make appropriate consideration on the punishment degree of "sentencing". From the perspective of foreign legislative cases related to our Criminal Law Article 360, the United States and Germany adopt different legislation design, and their original principles of criminal justice system are related to and have influence on their legislative cases design. The German legislation design of the criminal justice system is more similar to ours. The United States criminal justice system in regulating specific types of crimes on the legislative design, however, pays less attention to the types and scopes of the protected "legal interests", has neither the concept of "culprit, accomplice" and "competing-collaborating relationship", nor consideration of punishment degree "sentencing" in the design. The purposes of this study are, by observing the features of the United States and Germany in the relevant legislation design of legislative cases, to examine the problems of our current laws resulted from the legislation, to further propose a return to "legal interest" as the core of the legislative model for the design of legislative norms, to firmly establish legislative norms to protect where "legal interest" stands, to build "systematic" design of composing elements by legislative norms, to return "accomplice" act in the whole criminal process back to accomplice category for regulation, and to establish protection system against "critical interest" infringement. I hope the above 5 specific proposals can help legislators address the issues of legislation design.