论网络犯罪参与行为的正犯性——基于帮助信息网络犯罪活动罪的反思

在网络社会的推动下,犯罪参与结构日益从金字塔式的阶层结构转向链式的扁平结构,从司法解释到刑事立法都需要作出回应。对于网络犯罪参与行为的规范演变,不少学者理解为共犯行为正犯化,但是从其参与行为的结构出发理解为正犯行为共犯化更为妥当。关于帮助信息网络犯罪活动行为有中立帮助行为说、正犯化的帮助行为说、量刑规则独立的帮助行为说和累积犯说等观点的理论争议。应将该类行为理解为正犯行为,并从独立性和参与性两方面明确其行为性质。     

Under-recording of ethanol intoxication and poisoning in cause-of-death data: causes and consequences

In the present study we examined how consistently and completely the role of acute alcohol (ethanol) intake as a cause of death is reported on death certificates, how complete and specific the statistical recording of cause-of-death data on acute alcohol-induced deaths is, and how the information ultimately appears in the national mortality statistics. Data on all alcohol-positive deaths with blood alcohol concentration of ≥ 0.5‰ (g/kg) in Finland in 2005 (N = 2348) were reviewed. Overall, a concentration-dependent association was found between forensic-toxicologically determined blood alcohol concentrations and acute alcohol-specific cause-of-death diagnoses. Based on a medico-legal re-evaluation of death certificates, acute alcohol-specific causes were found to be underreported nationally at a rate of 8%. For accidental alcohol poisonings alone, the figure was about 1%. This underreporting was not corrected during recording of the cause-of-death data, though individual corrections and changes were observed. Especially, recording of multiple causes suffers from this underreporting of acute alcohol-specific causes. ICD-10 seems to do well in fulfilling the demands for a specific classification of uncomplicated alcohol poisoning. In combined alcohol-drug poisonings, however, ICD-10 shows a bias towards drugs over alcohol, even when alcohol has been specified and reported as the most toxic component by the medico-legal pathologist. Since the national statistics is based on the underlying causes, this state of affairs is likely to result in the underestimation of the role of acute alcohol intake as a cause of death. This observation of underreporting of acute alcohol-specific causes on death certificates should result in a harmonisation of education and principles and practices used in death certification. To increase the coverage and specificity of mortality statistics, based on the underlying causes of death, the coding of all components of alcohol-drug combinations and their classification according to the most important intoxicant or combination of intoxicants is recommended.     

Thinking about the future in criminal justice administration: Trends and implications

This paper utilizes the technology of Futures Research to discuss issues that may confront the criminal justice system in the year 2000. Conceptually, the criminal justice agencies are viewed as a social system which is open to external influence both in terms of organizational design and operation. The specific model of criminal justice agencies is based on the work of Lyman Porter and recognizes three primary factors: 1) contextual factors; 2) structural factors; and 3) behavioral consequences. The specific administrative issues discussed are derived from a series of long term social trends identified by futurist Herman Kahn of the Hudson Institute.     

国际反网络犯罪立法及其对我国的启示——以《网络犯罪公约》为中心

《网络犯罪公约》作为国际社会反对网络犯罪、加强国际合作的重要产物,第一次明确了网络犯罪行为的种类及行为人的责任,规定了有关电子证据调查的特殊程序法制度,并确立了网络犯罪管辖的基本原则。但也存在网络犯罪圈划定范围过大、人权与自由保护不足、管辖权过分包容并易导致冲突等问题。因此对该公约需理性看待,应发掘、借鉴其闪光点来推动我国的网络犯罪立法。     

The future of copyright in India

Legal context: The copyright laws in India are set to be amended with the introductionof the provisions for anti-circumvention and Rights ManagementInformation in the Indian copyright regime although India isunder no obligation to introduce these changes as it is nota signatory to WCT or WPPT. Key points: The main purpose of these provisions and measures is to preventillegal commercial copying, a menace which hits the Indian movieand music industry significantly enough to ensure that the industryforms a strong lobby in such proposals. India has amended itscopyright legislation over the years to accommodate technologicalchanges and prevent piracy; however, the problem has only escalatedover the years. Technological measures impose restrictions onthe access to content and impose other restrictions on the useof the same. Practical significance: Who are the actual stakeholders behind advocating these changes?Is it Bollywood or the same Hollywood studios which lobbiedfor the same changes in international legislation? What maybe the cultural implications of adopting such changes in Indiancopyright laws? The paper would attempt to assess the culturaleffect of the combined legal and technical measures being proposedunder the copyright laws in India.     

Cybercrime and legislation: a critical reflection on the Cybercrimes Act, 2015 of Jamaica

Providing sound legislative measure is a critical part of the national and international responses to cybercrime. The primary objective of this research is to raise awareness of the recently enacted Cybercrimes Act, 2015 of Jamaica, which is examined through the lens of the Convention on Cybercrime. The substantive law provisions are explored and it is revealed that there is some level of harmonisation with the Convention on Cybercrime. The analysis also showed that cybercrime laws in Jamaica are a composite of related legislation where these ought to be taken in consideration in any analysis of the currency or suitability for fighting cybercrime.     

Cybersecurity,safety and robots: Strengthening the link between cybersecurity and safety in the context of care robots

This paper addresses the interplay between robots, cybersecurity, and safety from a European legal perspective, a topic under-explored by current technical and legal literature. The legal framework, together with technical standards, is a necessary parameter for the production and deployment of robots. However, European law does not regulate robots as such, and there exist multiple and overlapping legal requirements focusing on specific contexts, such as product safety and medical devices. Besides, the recently enacted European Cybersecurity Act establishes a cybersecurity certification framework, which could be used to define cybersecurity requirements for robots, although concrete cyber-physical implementation requirements are not yet prescribed. In this article, we illustrate cybersecurity challenges and their subsequent safety implications with the concrete example of care robots. These robots interact in close, direct contact with children, elderly, and persons with disabilities, and a malfunctioning or cybersecurity threat may affect the health and well-being of these people. Moreover, care robots may process vast amounts of data, including health and behavioral data, which are especially sensitive in the healthcare domain. Security vulnerabilities in robots thus raise significant concerns, not only for manufacturers and programmers, but also for those who interact with them, especially in sensitive applications such as healthcare. While the latest European policymaking efforts on robot regulation acknowledge the importance of cybersecurity, many details, and their impact on user safety have not yet been addressed in depth. Our contribution aims to answer the question whether the current European legal framework is prepared to address cyber and physical risks from care robots and ensure safe human–robot interactions in such a sensitive context. Cybersecurity and physical product safety legal requirements are governed separately in a dual regulatory framework, presenting a challenge in governing uniformly and adequately cyber-physical systems such as care robots. We conceptualize and discuss the challenges of regulating cyber-physical systems’ security with the current dual framework, particularly the lack of mandatory certifications. We conclude that policymakers need to consider cybersecurity as an indissociable aspect of safety to ensure robots are truly safe to use.     

Cybercrime Tendencies and Legislation in the Republic of Macedonia

The advancement of information and communication technologies opens new venues and ways for cybercriminals to commit crime. There are several different types of cybercrime offences that need to be treated in a separate and different manner. The major international source that provides guidelines for treatment of cybercrime is the Convention on Cybercrime adopted by the Council of Europe and the European Commission Action Plan. The purpose of the paper is to present, discuss and analyze the Macedonian legislation treating cybercrime, with respect to the specific cases typically encountered in practice and the international guidelines concerning cybercrime. The major source of cybercrime legislation in Macedonia is the Criminal Code with provisions thereof in ten of its articles; it addresses cybercrimes such as personal data abuse, copyright and piracy issues, production and distribution of child pornography, computer viruses, intrusions into computer systems, computer fraud and computer forgery. We also present and analyze reports on cybercrime complaints and victims from Macedonia, issued by the Internet Crime Complaint Center and the Macedonian Ministry of Internal Affairs. The reports reveal the unusually high number of complaints for perpetrators and victims originating from Macedonia. Furthermore, we highlight several recent cybercrime cases reported in Macedonia. All things considered, the Macedonian penal legislation is modern and it follows the current European and world standards. It provides guidelines for successful resolution of cybercrime committed in the Republic of Macedonia. However, it could be improved by a more active inclusion of Macedonian authorities in the global response to cybercrime and by stronger enforcement of cybercrime prevention measures and strategies.     

The legal regime for application of the precautionary principle in India: future directions for the GM regulatory regime

The precautionary principle is one of the most contentious principles in contemporary international legal developments. The very fact that it is a principle of international environmental law has been questioned by many legal scholars. However, this does not take away the fact that the precautionary principle continues to be applied widely across sectors both internationally and nationally. The nature and scope of its application has varied widely according to the context and sector within which it has been applied. The central issue which this article seeks to address is the regulatory and the policy making space that is available to the Government of India in the context of the obligations as undertaken under the Cartagena Protocol and under various other international treaties. The regulatory space would also be affected by the domestic legal developments across sectors in which the principle has been applied. India’s recent decision on the large-scale commercialisation of Bt-Cotton has already created much debate regarding its appropriateness given the realities of Indian farm practices. More specifically, it has also led to a rethinking of the role and application of the precautionary principle in addressing these realities. Considering that the Indian policy on biotechnology is currently being drafted, it is important to look into the scope of applying the precautionary principle in taking any decision on genetically modified organisms (GMO) in terms of their distribution of risks, incorporating the social and equity impacts of such decisions.

Intimate partner violence and physical health consequences: policy and practice implications

Extensive research indicates that intimate partner violence (IPV) poses a significant risk to the physical health of women. IPV is associated with increased mortality, injury and disability, worse general health, chronic pain, substance abuse, reproductive disorders, and poorer pregnancy outcomes. IPV is also associated with an overuse of health services and unmet need for services, as well as strained relationships with providers. The body of IPV research has several critical gaps. There are almost no longitudinal studies of IPV and health. Most studies are clustered into a few specialties, with almost no research in the areas of allied health, dentistry, or management. A common definition of IPV is still not used. Finally, with some notable exceptions, there has been little success in moving the health care system to routinely screen women for IPV.     

Cybercrime: Towards an Assessment of its Nature and Impact

This paper discusses some approaches for a comprehensive analysis of cybercrime for both a better understanding of the phenomenon and policies to control it. We first discuss the nature of cybercrime, and review some of the related research issues. In view of its newness, we develop taxonomies for a more systematic classification of the different types of cybercrimes. Next, we explore some of the main empirical questions that need to be studied regarding cybercrime and describe some modeling approaches as well as the data requirements for a better understanding.     

Multilateral cybersecurity governance: Divergent conceptualizations and its origin

Conventional wisdom holds that none of the main global challenges of the 21st century—whether it is climate change, nuclear weapons or cyber insecurity—can be adequately addressed without proper international cooperation. However, multilateral cooperation in many issue areas including cybersecurity is in a state of gridlock. Diverging conceptualizations of the subject matter has been offered as one driving factor behind the difficulty to cooperate at the international level.This paper contends that while international cooperation in cybersecurity has been difficult because of diverging definitions and conceptualizations of the subject, which are apparent in the international system, the problem grew into a state of gridlock because this divergence is anchored in the incompatibility of the ways in which major cyber powers organize their respective political systems at home. As such, it is argued that, the role of the multilateral system to bring about any significant progress in cybersecurity governance is very limited.     

Digital Realism and the Governance of Spam as Cybercrime

Spamming is a major threat to the formation of public trust in the Internet and discourages broader civil participation in the emerging information society. To the individual, spams are usually little more than a nuisance, but collectively they expose Internet users to a panoply of new risks while threatening the communications and commercial infrastructure. Spamming also raises important questions of criminological interest. On the one hand it is an example of a pure cybercrime – a harmful behaviour mediated by the Internet that is the subject of criminal law, while on the other hand, it is a behaviour that has in practice been most effectively contained technologically by the manipulation of ‘code’ – but at what cost? Because there is not an agreed meaning as to what constitutes ‘online order’ that renders it simply and uncritically reducible to a set of formulae and algorithms that can be subsequently imposed (surreptitiously) by technological processes. The imposition of order online, as it is offline, needs to be subject to critical discussion and also checks and balances that have their origins in the authority of law. This article deconstructs and analyses spamming behaviour, before exploring the boundaries between law and code (technology) as governance in order to inform and stimulate the debate over the embedding of cybercrime prevention policy within the code itself.