On January 31, 2024, today's statement column ** reported the "Follow the Line to Trace the Case in the Case" program detected by Hubei**. The "previous case" refers to the crime of the criminal suspect using software to open a casino, and the "later case" refers to the crime of extortion by hackers who destroy gambling software to obtain property. Among them, the main point of the professor's comment on the "post-case" is that illegal gains such as gambling are also worthy of protection under the Criminal Law, and it is worth discussing whether "black eats black" is worthy of protection.
Whether "black eats black" is worth protecting is worth protecting.
In judicial practice, there are various types of "black eating black", but from the perspective of the Civil Code, "black eating black" can be divided into two types. The first is a civil act, for example, where a thief burglarizes another person's property and leaves it outside, and another person takes advantage of his or her inattention. The second situation is a civil juristic act, for example, following the previous example, another person takes the opportunity to report to the police to coerce him to hand over his property.
The first circumstance mentioned above can be assessed as follows: another person's unjust acquisition of other people's property constitutes theft in accordance with law, and the victim is still the owner of the original property. The second circumstance can be assessed as if another person obtains another person's property by coercion, and the victim is still the owner of the original property, in which the thief is the illegal possessor.
The legal recognition of the protection of illegal possession is inconsistent with the provisions of Article 458 of the Civil Code, and provides protection for illegal and criminal acts such as corruption. Article 458 has only one sentence, the first half of which provides that "possession ...... arising from contractual relationships, etc.""The law protects only lawful possession. The second half of the sentence stipulates that "if there is no agreement in the contract or the agreement is not clear, the relevant laws and regulations shall apply", which is a provision on the attribution of profits and losses in lawful possession.
It should be noted that the "malicious possessor shall bear the liability for compensation" as provided in Article 459 of the Civil Code does not refer to the liability of the malicious possessor to the former malicious possessor, but to the liability to the owner. Combined with the analysis of the above two legal provisions, it can be concluded that the Civil Code does not protect the interests of malicious possessors.
Many criminal law experts believe that the concepts in the Criminal Law are different from those in the Civil Code and other laws, and that the Criminal Law can formulate corresponding legal terms, the purpose of which is roughly as follows: on the one hand, scholars do not need to study the terms in the Civil Code and other laws in depth. Scholars, on the other hand, can create relevant theories and enrich their own doctrines.
The Penal Code contains a number of provisions that use "unlawful possession". For example, the crime of contract fraud as provided for in Article 224 of this Law. Experts believe that the Criminal Code extends the term "possession" to crimes such as theft and fraud. The legal provisions of the Criminal Law on the sub-provision of "use of illegal possession" stipulate that the target of infringement is the market operator, and the market entity is very important to the possession of property.
The Criminal Law protects possession as a special case, i.e., only the lawful possession of market operators is protected. Otherwise, if the lost property is found and not returned, the judicial organ may find that the perpetrator of unjust enrichment has constituted a crime, and the Criminal Law cannot protect illegal possession accordingly.
Since criminal law experts believe that the protection of illegal possession is protected, the crime of extortion is very widely applied in judicial practice. For example, if a wife commits adultery with another person and the husband claims compensation for moral damages, he is found guilty of extortion. Not only that, but the husband who was "cuckolded" may be sentenced to actual punishment if he does not obtain the forgiveness of the "adulterer", and the husband may also need to apologize in order to obtain a suspended sentence.
The above-mentioned incongruity is inconsistent with the provisions of the Civil Code on the grounds that the Act provides that coercion is a revocable civil juristic act. The distinction between revocable coercion and criminal coercion should be based on the relevant theories of civil law, otherwise, judicial practice may not distinguish between civil and criminal law.
Coercion is a civil juristic act, and there are two main situations in civil practice. The first is to coerce others by taking advantage of the fact that they have already occurred, for example, in the case of "adultery" mentioned above. The second situation is the creation or creation of coercive facts to threaten them, for example, in the case above, where the husband intentionally allows his wife to commit "adultery" with another person. The first is civil coercion, and the second is fraud and extortion.
The nature of hackers destroying gambling software to obtain money needs to be understood from two perspectives: the means of destruction and the content of coercion. From the perspective of means of destruction, hackers' destruction of software can be found to be the crime of intentional destruction of property, sabotage of production and operation, or destruction of computer information systems. However, because software is a criminal tool and opening a casino is a criminal act, the judicial authorities cannot determine that hackers destroying gambling software are criminal acts.
From the perspective of the content of coercion, the "victim" who opened the casino said that "the skills are not as good as others, and there is no way", and the victim's inability to obtain criminal proceeds cannot be evaluated as coercion. The most important thing is that the coercer did not coerce him by calling the police, etc., and even if he coerced him by calling the police, since the sabotage does not constitute a crime, the hacker's coercion is also a revocable civil legal act.
The proceeds of gambling and other crimes are not worthy of the protection of the Criminal Law, and there is no provision in the Criminal Law that illegal interests are protected by law. Moreover, it is also worth discussing the increase in the statutory penalty for the crime of extortion in the 1997 Penal Code, for example, the 1979 Penal Code provides for a maximum statutory sentence of up to seven years' imprisonment for this offence, while the current Criminal Code has a maximum statutory penalty of up to 15 years' imprisonment.
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