Criminal law counteraction to cybercrime in Russia and China: a comparative legal aspect
The article analyzes the criminal legislation of Russia and China regulating the issues of countering cybercrime at the current stage of the development of public relations. The positive experience of the People's Republic of China in the field of countering cybercrime by criminal legal means is being investigated in order to develop proposals for improving Russian criminal legislation. The criminal legislation of the People's Republic of China is constantly being supplemented with new norms, taking into account the development of information technology, which is one of the effective ways to combat this type of crime.
Keywords: cybercrime, crimes committed using information and telecommunication networks, counteraction, criminal liability.
The modern information world is dynamically developing, which creates new threats in the criminal environment, accordingly, traditional ways and methods of combating crime need to be improved. During a meeting with the Prosecutor General of the Supreme People's Prosecutor's Office of the People's Republic of China, Ying Yun, in July 2023, the Prosecutor General of the Russian Federation, Igor Viktorovich Krasnov, noted that many modern challenges and threats are the same for both Russia and China <1>. Of particular concern are the so-called cybercrimes, the involvement of minors and young people in committing illegal acts using the Internet, crimes committed using digital financial assets and digital currencies, the dissemination of false information on the Internet with the aim of destructive external influence on the formation of public opinion, etc. Despite the measures taken to counter cybercrime, certain problems remain in both Russia and China related to the emergence of new types of cybercrime that require legislative regulation. Crimes committed in this area are characterized by the use of highly intelligent cyber technologies and a large amount of data.
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<1>
The Russian Federation and the People's Republic of China have been maintaining good-neighborly relations for a long time, which will continue to develop and strengthen in the near future, which the heads of both states pay attention to. In this regard, special attention should be paid to cooperation in the field of combating crime, in particular with cybercrime, which has a cross-border character.
The Chinese government attaches great importance to the development of the digital economy, as a result, a modern Internet economy has been built in the country, which has certain specifics in combination with network technology <2>. At the same time, technological progress is rapidly changing the ways and tools of committing crimes. High technologies, penetrating into all spheres of human activity, radically change it, which certainly applies to crime <3>. Currently, China is implementing a consistent and competent policy in the field of combating computer crime, which allows reducing the number of such crimes.
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<2> Egorova M.A., Wang Guanglong, Shmeleva D.V. Criminal law regulation of currency crimes in the context of the digital yuan // Law and the digital economy. 2022. N 3.
<3> Karpovich O.G., Nogmova A.S. International legal problems of countering cybercrime // International. public and private law. 2022. N 1.
Regarding the turnover of digital currencies, it is worth noting that, "despite the fact that domestic cryptocurrency exchanges are completely banned in China, workarounds are possible using certain foreign platforms and websites that the Chinese Internet firewall does not see. In the near future, China does not intend to lift or weaken the ban on cryptocurrencies, but at the same time it is actively developing the concept of a digital currency of central banks - the digital yuan (e-CNY)" <4>.
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<4> Sidorenko E.L. Cryptocurrency and the future of digital finance. Moscow: MGIMO University, 2023. p. 26.
Today, cyber law is in force in China, which is based on the Basic Law of the People's Republic of China - the Constitution and is a system of laws, administrative rules, departmental instructions, local government regulations, etc. It is dominated by laws on the creation and management of cyber content, cybersecurity and informatization, which creates reliable institutional guarantees for building a strong cyber state. The Law of the People's Republic of China "On Cybersecurity", adopted on November 7, 2016, which is the main regulatory legal act regulating the field of information security, is aimed at ensuring cybersecurity, protecting the sovereignty and national security of cyberspace, the interests of society, the rights and legitimate interests of citizens, legal entities and other organizations, promoting the healthy development of economic and social informatization <5>.
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<5> China's First Cyber Security Law.
The Supreme People's Prosecutor's Office of the People's Republic of China has established a steering group to combat cybercrime, headed by the leadership of the Prosecutor's Office and consisting of 12 internal institutions. Much attention is paid to prevention. Films, videos are being filmed and constantly shown, broadcasts are being broadcast, magazines are being published on combating fraud committed using information and communication technologies, in the preparation and organization of which employees of the prosecutor's office take part.
In the doctrine of Russian criminal law and criminology, it is possible to note the appearance of such terms as "cybercrime", "digital crime", "computer crime", etc., which are characterized by the breadth of approach and difficulties in determining specific signs of such crime.
There is also no unified understanding of cybercrime in the Chinese legal community. Some scholars argue that this concept "is a somewhat vague and confusing subcriminal concept in the field of criminal law" <6>. The realities of the modern world require the improvement of measures to counter cybercrime, by which Chinese jurists propose to understand any crimes committed using a computer system or network, within or against it <7>.
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<6> Xu Jianfeng. Basic thinking about the concept of criminal law participation in the Internet age // Legal Science. 2017. N 3.
<7> Wang Guanglong. Criminal law regulation of countering cybercrime in China: status, trends and shortcomings // Vestn. S.-St. Petersburg University. Right. 2022. N 3.
The Supreme People's Court of the People's Republic of China, the Supreme People's Prosecutor's Office of the People's Republic of China and the Ministry of Industry and Informatization of the People's Republic of China have issued Opinions on some issues related to the application of criminal procedure legislation in criminal cases of cybercrime in the field of information, Article 1 of which stipulates that cases of cybercrime include:
1) cases of crimes against the security of computer information systems;
2) cases of crimes related to non-fulfillment of obligations on cybersecurity management, illegal use of the information network and promotion of criminal activity in the information network;
3) other criminal cases, for example, fraud, gambling, attacks on personal information, committed mainly through information networks.
Speaking about measures to counter cybercrimes or crimes committed using information and communication technologies, it should be noted that criminal law prohibitions traditionally prevail among them. Indeed, the role of criminal law prevention in the implementation of criminal policy to combat crime in the context of digitalization of public relations should not be underestimated.
In the Russian criminal law, responsibility for cybercrimes is established in Chapter 28. In addition, the sign "use of mass media or electronic or information and telecommunication networks (including the Internet)" is increasingly included as qualifying in various types of crimes, which is justified taking into account the high level of informatization of public relations <8>.
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<8> Efremova M.A. Criminal law protection of information security: monograph. M., 2018. pp. 68-71.
In China, the articles providing for criminal liability for the crimes in question are located in Chapter 6 of the Criminal Code of the People's Republic of China (hereinafter referred to as the Criminal Code of the People's Republic of China) "Crimes against public order and the order of Government". Initially, the Criminal Code of the People's Republic of China (as amended in 1997) established responsibility for three elements of a crime <9>. Firstly, for unauthorized access to information resources related to the activities of public authorities, other particularly important industries and ensuring the country's defense capability (Article 285 of the Criminal Code of the People's Republic of China). For comparison, we note that in art. 274.1, which was introduced into the Criminal Code of the Russian Federation in 2017, the term "critical information infrastructure facilities" is used. Secondly, for unlawful interference in the operation of automatic data processing tools, as well as the manufacture and distribution of malicious computer programs (Article 286 of the Criminal Code of the People's Republic of China). Thirdly, art. 287 of the Criminal Code of the People's Republic of China, which does not contain an independent criminal law prohibition, established that traditional encroachments committed using computer technology, such as fraud, theft, high treason, etc., are punished in accordance with the general provisions of criminal law on liability for these crimes <10>.
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<9> Evdokimov K.N. Countering computer crime: theory, legislation, practice: dis. ... Dr. yurid. M., 2022. pp. 296-297.
<10> Criminal Code of the People's Republic of China.
A similar situation was developing in Russia. The Criminal Code of the Russian Federation, which entered into force in 1996, also contained three elements of a crime in the field of computer information (Articles 272-274).
In the future, China's criminal legislation was supplemented with new types of crimes. Thus, Amendments to the Criminal Code of the People's Republic of China dated 02/28/2009 No. 7, Article 285 supplemented Part 2, in which the legislator criminalized intrusion into computer information systems outside the sphere of state affairs, national defense and advanced science and technology, data acquisition using other means or illegal management of computer information systems, as well as Part 3, which established criminal liability for the illegal provision of programs and devices for intrusion into computer information systems and illegal management of them. This was due to the fact that some individuals specialize in creating and selling programs and devices used to commit the crimes in question.
In 2015, Amendments No. 9 of the Criminal Code of the People's Republic of China were supplemented with three new formulations. Article 286.1 establishes responsibility for refusing to fulfill obligations to manage the security of an information network, and Article 287.1 establishes responsibility for creating websites and distributing information that contributes to the commission of crimes. Any of the acts committed using an information network under aggravating circumstances can be attributed to this crime. For example, the creation of websites for the purpose of committing fraud (fake sites), for teaching methods of committing crimes, manufacturing or selling prohibited or restricted items; dissemination of information about the manufacture, sale of narcotic drugs, weapons, pornographic materials, etc.
Article 287.2 provides for criminal liability for the promotion of cybercrime, the essence of which consists in providing a means of connecting to the Internet, a server, network storage, communication transmission and other technical support, providing advertising promotion, means of payment or providing other assistance to persons who knowingly commit crimes using information networks, under aggravating circumstances.
Thus, the Chinese legislator criminalized preparatory and auxiliary actions for the commission of cybercrimes. In other words, the criminal legislation of the People's Republic of China qualifies the preparation for the commission of a crime and the provision of assistance as independent crimes. This approach seems justified. Cybercrimes, as a rule, consist of a number of illegal acts, forming a so-called complex chain, committed by a group of individuals.
It is important to pay attention to the fact that corporations (legal entities) can act as the subject of such crimes as illegal intrusion into computer information systems; illegal receipt of data from computer information systems or illegal management of computer information systems; provision of programs, devices for intrusion into computer information systems or illegal management of them; destruction of computer information systems). Legal entities may be held criminally liable only for specially designated crimes <11>.
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<11> Fedorov A.V. Criminal liability of legal entities and the digital economy // Law and the digital economy. 2021. N 1.
The conducted study of the criminal law regulation of responsibility for cybercrimes in the criminal legislation of the People's Republic of China allowed us to come to the following conclusions.
Computer crimes are regulated as independent components of criminal acts <12>. It is worth noting the expansion of the system of computer crimes, which reflects the modern criminal policy of China, which consists in timely response to the emerging situation in the field of information security.
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<12> See, for example: Russkevich E.A. Criminal liability for crimes in the field of computer information under the legislation of the People's Republic of China: comparative legal analysis // Journal Abroad. legislation and compare. law studies. 2018. N 5.
For the first time in Russian criminal legislation, the norms on computer crimes appeared in the Criminal Code of the Russian Federation in 1996 in Chapter 28 "Crimes in the field of computer information", which was further supplemented by Articles 274.1 and 274.2. In this regard, some authors draw attention to the need for further improvement of Russian criminal legislation, taking into account the positive trends in the development of Chinese criminal legislation in in the field of countering cybercrime <13>.
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<13> Nakhantsakov B.Ch., Myakhanova A.N. Comparison of criminal legislation on cybercrime in Russia and China // Compare. Jurisprudence in the countries of the Asia-Pacific region - XIII: proceedings of the annual International Conference. youth Scientific and Practical Conference (Ulan-Ude, April 15, 2022). Ulan-Ude, 2022.
As cybercrime has spread in China, a "preventive pre-punishment strategy" has been developed, consisting in criminalizing preparatory acts, the acts of accomplices. The legal literature also points to the trend of open legislation, which has become a strategic choice for China and is aimed at filling possible omissions and gaps in the criminal law, providing a broad regulatory framework for law enforcement <14>. An example is art. 287.2 of the Criminal Code of the People's Republic of China, which contains characteristics of generalized open legislation (on the one hand, liability is provided for several types of complicity, which include almost all cybercrimes, and on the other hand, complicity is quite broad, since generalized expressions such as "provision... other technical support", "provision of other assistance").
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<14> Wang Guanglong. Decree. op.
The main part of computer crimes is fixed in Chapter 6 of the Criminal Code of the People's Republic of China "Crimes against public order and management order". Therefore, the object of criminal encroachment is not only public relations in the field of safe handling of computer information, as in the Criminal Code of the Russian Federation, but also, for example, public order and public safety.
From the analysis of the objective side of some computer crimes, it follows that the corpus delicti provided for in Part 1 of Article 273 of the Criminal Code of the Russian Federation (creation, distribution and use of malicious computer programs) was formulated by the legislator as formal, i.e. not requiring the onset of socially dangerous consequences. In Chinese criminal law, the creation, use and distribution of malicious computer programs is considered as a material element of a crime that has serious consequences (Article 286 of the Criminal Code of the People's Republic of China).
Thus, the results of the comparative legal analysis of the criminal law counteraction to cybercrime in Russia and China show the presence of both common features and differences. Of course, borrowing positive experience will help minimize the criminal risks caused by the digitalization of public relations. One of the main features of the criminal legislation of the People's Republic of China is the timely response to the emergence of new threats in the field of cybersecurity by expanding the system of cybercrimes. A serious step in the field of countering cybercrime should be the definition of the concept of "cybercrime" in order to have a unified approach to its understanding and attribution of a particular illegal act to it.
To ensure information security and prevent cybercrime, both countries must continue to improve their legislative framework, develop cooperation with other States and introduce new technologies to combat criminal threats. At the same time, it is necessary to expand the exchange of experience and study the effective practices of other states in order to develop joint methods that contribute to cybersecurity. It seems necessary to seek and implement innovative approaches in the management of cyberspace.
International cooperation is of great importance in countering cybercrime. Russia and China, being the largest countries in the world, have extensive experience in countering cybercrime, possess large resources and technical capabilities, which allows them to successfully combat emerging threats.
