Abstract

This book focuses on the 18 U.S.C§1030，which is a criminal statute about the criminalization of computer crime in U.S federal government.Through the study of legislation background，contents and amendments of the statute，this book gets a general version of§1030，and then makes detailed research of three fundamental sub-articles in the statute with analysis of typical judicial precedents.Based on the fully understanding of§1030，this book makes a comparative research between Chinese criminal statutes and jurisdictional interpretationwhich criminalize the computer crime and the§1030.The comparative research mainly analyzes the following three criminal acts：unauthorized or exceeding authorized access，computer fraud and causing damage and loss to computer.During the comparative research，the study also analyzes some cases and court decision，which are made by Chinese courts recently.Finally，this book gives its own comprehension of Chinese computer criminal law and suggestions of amendment.There are in all 8 chapters including introduction and conclusion and，400 thousand words proximately.

In Chapter 1，it expounds the reason of causing computer crime that is a by-product of technology abuse or improper use.For combating computer crime，the countries both in Continental Law System and Anglo-American Legal System have enacted special statutes.After observing the different statutes in chief countries of two systems，this book holds the standpoint on the protecting legal interest in computer crime，and it is the security of data and information in computer and the interest of property，which is indicated by the data and information.The purpose to legislate special criminal statute to combat computer crime is for filling the loopholes that exist in traditional criminal statute.Because of the diversity of computer crime，this book studies the type of one in which the computer is a target.

Chapter 2 addresses the federal computer crime law in U.S，§1030.It traces the legislation history of the law and its 5 times of amendments.

Chapter 3 explores the issues of illegal access to computer.The illegal access includes unauthorized access and exceeding authorized access.Although§1030 is a criminal statute，it also contains some civil provisions.Those two kinds of provisions need different standards when judging what an illegal access is.In America，there are three basic standards：code-based restriction，contract-based restriction and principles of agency law.It has great value in choosing different standards in criminal and civil cases.The value is that the criminal statute can be applied properly and correctly and it also meets the purpose of modern penalty and，it is good for protecting the development of technology.The relationship and distinction between unauthorized access and exceeding authorized access in §1030 are discussed at the end of this chapter.

Chapter 4 covers the criminalization of computer fraud in U.S.After the analysis of basic conception of computer fraud，the difference between fraud and computer fraud is discussed，and then the legislation background，contents and the constitution of the crime in§1030.Because there are some identical parts between the law of wire fraud and sub-article of computer fraud，this book makes a clarification in their application，the difference between computer fraud and the crime of unauthorized access is explained as well.With a typical case，United States v.Czubinski，the judicial way of how to criminalize computer fraud is fully analyzed.

Chapter 5 explores the crime of causing damage and loss to computer.There are two kinds of dangerous acts in the crime，which are transmission and unauthorized access.At first，this book deals with the basic conception of transmission and the determination of it，then this book focuses on the subjective aspects of the crime.According to§1030，the subjective aspects of the crime contain intention，recklessness and strict liability.The book discusses those three kinds of subjective aspects separately with various cases and criminal theories.The dangerous result of the crime includes causing damage to a computer and loss to victim.Both damage and loss have their special meaning and different way to determine，so the book discusses them respectively on their conception，contents and with typical precedents.How to reasonably calculate loss to a victim according to§1030 is quite important，and it is discussed in the last part of this chapter.

Chapter 6 is related about the liability of computer crime under§1030.The liability not only includes criminal penalties but civil ones.At first，the liability of criminal penalty is addressed.There are two kinds of liability in§1030.The one is penalty for misdemeanor and other is for felony.After concerning the penalty of misdemeanor for the crime，this book treaces the reason that why the felony is available to it.Because the civil penalties are special liability for computer crime and they are also characteristics of§1030.So the book makes a full exploration about the background of civil penalties and their contents in the article.Specially，the civil liability and its rules of application are totally discussed with a leading case named Getloaded.About the civil penalties，the book's evaluation is that it can give more help and choices to victims，and the most important is the efficiency of judicial operation besides the criminal penalties.

Chapter 7 makes a comparative study between§1030 and articles 285 and 286 which are computer crime law in Chinese Criminal Law Code.Based on the summarization about the criminalization characteristics of§1030，this book analyzes regulations which are both legislated in§1030 and articles 285 and 286.At first，this book discusses the contents of articles 285 and 286，and points out their relationship and difference with a case named Baoqiang Chen gains computer data illegally.After the clarification to those two articles，the term “violates laws and regulations of state” is discussed with detail.Because the term has same function with unauthorized access and exceeding authorized access in§1030，which can reveal an act is illegal or not.So the term should have no doubt and will not lead different opinions from people when they are applying it.Comparing with the way which American courts have done for defining what unauthorized access is，this book suggests that we should construct a precedent directing system in which the rules of judgment for a fixed crime can be summarized.Under the precedent directing system and rules of judgment，the term “violates laws and regulations of state” can be clarified efficiently and easily.Besides the term，there are still another two terms relevant to computer crime in China's judicial interpretation that are released by China's Supreme People's Court and Supreme People's Procuratorate.These two terms are unauthorized access and exceeding authorized access，which have same structure comparing with American federal computer law.Although the judicial interpretation has ruled the two terms，there is no further explanation about the specific application and judgment of the two terms.According to comparative study，this book gives a fixed definition about the terms of unauthorized access and exceeding authorized access in Chinese criminal law context.On the computer fraud，this book makes a constructive research.Because there is no computer fraud statute in Chinese criminal law，so it can't do a complete comparative analysis.Based on the legal interest and its characteristics of finiteness and infiniteness，this book explores the way that computer fraud should be legislated in Chinese criminal law as a new crime.Causing damage and loss to computer and victim is one of the dangerous results in computer crime.This book makes a comparative study about the criminalization of damage and loss causing between§1030 and article 286 in Chinese criminal law.Connecting to leading cases that happens in China，the book mainly concerns transmission in the course of causing damage and the reasonable way to calculate loss.The civil liability of computer crime in Chinese criminal law is suggested at the end of chapter 7.The last chapter as a conclusion of this book concerns on the position and function of criminal law while in criminalizing the computer.The position of criminal law should be the last choice when combating computer crime，and the function of criminal law is protecting the development of technology，the security of society and personal right in computer，and also prohibiting technology abuse.

Key words：computer crime；risk in technology usage；unauthorized access；precedent directing system；combination of criminal and civil penalties