数字经济时代的刑事安全风险及其刑法防控体系

Criminal Security Risks and Criminal Law Prevention Mechanism in the Digital Economy Era

摘要:

数字经济是经济发展的数字化形态，呈现平台化、链条化和无区域化等特点。人工智能、区块链、大数据等技术与经济发展的融合发展，不仅导致传统犯罪呈现数字化转型，而且会形成庞大的网络黑灰产业，从而带来金融、网络与信息、知识产权等方面的刑事安全风险，给刑法立法、刑事司法带来严重挑战。刑法理论对此需要分别从立法论与解释论上予以积极回应。从立法论上，刑法的积极预防有其界限，应当采取_“刑法治理与多元治理并轨、法律治理与技术治理同步、源头治理与重点治理并重、刑法明确与兜底罪名相融_”的发展模式。从解释论上，数字经济时代出现的犯罪新形态，对传统刑法理论的管辖论、不法论、归责论、共犯论等均提出新问题，需要提出与建构能动主义解释论。

Abstract:

The digital economy is a digital form of economic development，exhibiting characteristics such as platformization，chaining and non-regionalization. The integration and development of technologies such as artificial intelligence blockchain， and big data with economic development not only lead to the digital transformation of traditional crimes，but also form a huge network black and gray industry， which brings criminal security risks in finance，network and information，intellectual property，and other aspects，posing serious challenges to criminal law legislation and criminal justice. Criminal law theory needs to respond positively to this from both legislative and interpretive perspectives. From a legislative perspective， the active prevention of criminal law has its limits and should adopt a development model of _“combining criminal law governance with diversified governance， synchronizing legal governance with technological governance， emphasizing both source governance and key governance，and integrating the clarity of the criminal law with the accusation of crime_”. From the perspective of interpretive theory， the new forms of crime that have emerged in the digital economy era have raised new issues regarding traditional criminal law theories such as jurisdiction theory ，illegality theory，attribution theory， and accomplice theory. It is necessary to propose and construct a activism interpretive theory. This roughly includes four aspects：(1)The prerequisite for jurisdiction within the domain is to maximize the principle of facilitating the investigation and punishment of cybercrime, and a centralized and specialized jurisdiction model can be considered that is, the higher-level public security organs or people's courts can concentrate cybercrime cases and entrust them to specific public security organs or people?s courts for unified centralized jurisdiction.(2)With the development of the digital economy, the types of illegal behavior in cybercrime have been expanded, and the evaluation standards and focus of illegal results will shift. For the illegal evaluation of cybercrime and information crime,it is necessary to shift from _“result without value_” to _“behavior without value_”and this _“ behavior without value_” also needs to be further distinguished.（3） The joint accountability of individual responsibility and platform responsibility is different from other crimes in the attribution mode of online crime. Online platforms have important significance in crime prevention，and it is necessary to moderately strengthen the attribution of online platforms. For example，based on the principle of integrating platform，data ，and algorithms，it is necessary to reconstruct the purpose and system of liability based on standardized protection data flow and information security. From a legal perspective it is necessary to clarify the relationship between platform obligations and the crime of refusing to fulfill network security management obligations data flow and infringement of public personal information algorithm abuse and assistance in information network criminal activities，in order to solve the problem of liability determination for network crimes.（4）According to the theory of the constituent elements of chain type individual crimes，joint crimes should not be recognized based on the traditional theory of accomplice. The evaluation focus of network type joint crimes is on the illegal form of behavior，which requires changing the previous judgment standards of _“conspiracy as the center responsibility as the center and contact as the core_”，and developing the judgment methods and standards of _“principal offender as the center，illegality as the center，and causality as the core_” .