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Section 3. Criminal science
DOI: http://dx.doi.org/10.20534/EJLPS-16-4-10-13
Evdokimov Konstantin Nikolaevichj Associate Professor of the Chair of State and Law Disciplines
of the Irkutsk Law Institute Affiliated with the Academy of the General Prosecutor's Office
of the Russian Federation PhD in Law, Associate Professor E-mail: [email protected]
Comparative study of criminal legislation of Russia and foreign countries providing for liability for committing computer crimes
Abstract: This article examines the criminal legislation of Russia and foreign countries, which regulate liability for the Commission of computer crimes. The author reveals the advantages and disadvantages of the Russian legislation regarding the criminalization of computer crimes. Put forward proposals on the improvement of criminal law articles 272-274 of the criminal code.
Keywords: computer crime; crimes in the sphere of computer information; criminal law; criminal liability; criminal and legal system.
crimes, is the analysis of foreign legislation and the use of positive experience in combating cyber crime, for example, in the US or Western Europe, where the process of criminalization of offenses in the field of information technology began much earlier
than in Russia.
Let us analyze the criminal law legislation of Russia, USA, France, Germany, Sweden and other developed countries, belonging to different legal families, to identify the characteristics of the regulation of crimes in the sphere of computer information and the responsibility for these acts.
Considering the legislation of the Russian Federation, providing penalties for committing computer crimes, it should be noted that the Russian legislator, in contrast to the European, American or Chinese, introduced into the Criminal Code of the Russian special chapter № 28 "in the field of computer information crimes", which includes 3 legislative article fixing criminal liability for the following offenses:
• Art. 272 of the Criminal Code "Illegal access to computer information";
Currently, the existence of computer crime causing enormous damage to the Russian economy, as well as threaten the information security of the Russian state and society.
According to the research Cost of Cyber Crime Study 2014 conducted by Ponemon Institute with the support of HP Enterprise Security, the average expense of a Russian organization from cybercrime in 2014 amounted to 3.3 mln. Dollars [1]. As a result of a joint research fund development of Internet initiatives (FRII) and international companies Group-IB, Microsoft was found that damage to the Russian economy from cybercrime in 2015 exceeded 200 billion rubles, which accounted for 0.25% of the GDP of the Russian Federation [2].
Therefore, certainly, combating computer-related crime and improve the criminal-legal means of struggle against crimes in the sphere of computer information, it is one of the priorities of the Russian scientific community and law enforcement.
One of the effective ways to improve the domestic criminal law governing the liability for computer
Comparative study of criminal legislation of Russia and foreign countries providing for liability for committing computer crimes
• Art. 273 of the Criminal Code "Creation, use and distribution of malicious computer programs"
• Art. 274 "Violation of the rules of operation of the storage means, processing or transmission of computer and information and telecommunications networks." The maximum penalty for committing a criminal offense — imprisonment up to seven years [3].
A novelty in the development of Russian criminal legislation was the introduction of the Federal Law of29.11.2012 № 207-FZ chapter number 21 of the Criminal Code "Crimes against property" of a number of new offenses, among which are several formulations of computer crimes, such as fraud using payment cards (article 159.3 of the Criminal Code) and fraud in the sphere of computer information (article 159.6 of the Criminal Code).
Thus, the law enforcement bodies of the Russian Federation there are additional criminal legal means of combating computer fraud involving the use of a computer to commit theft of information, as well as various tools for creating, storing, processing, transmission of computer information, including payment cards.
Through a comparative legal analysis of foreign and Russian legislation governing criminal liability for computer crime, you can make several important conclusions.
Firstly, in criminal systems, Anglo-American, Scandinavian, Roman-Germanic and the socialist legal family there is a general trend towards the consolidation of criminal liability for computer crimes legislation (Criminal Code or special laws) as the sources of law.
Secondly, in spite of certain differences existing legal families, we can note the general trend to the "hybridization" of national criminal law systems, which finds its expression in the legislative consolidation of the individual (special) criminal group for committing criminal acts in the sphere of computer information (Russia, USA, China, CIS).
Third, unlike the Criminal Code, computer crime in the foreign criminal law may be secured to other elements of a crime as an aggravating circumstance, or ways of committing another criminal offense (for example, Art. 9c Ch. 4, Article 1 of the Criminal Code Ch.9 Sweden, § 206, § 317, § 263a of the Criminal Code of Germany, by Articles 226-18,
226-19 of the Criminal Code of France).
Fourth, the Russian legislator, from the standpoint of the rules of legal technique, basic computer crime merged into one chapter of the Criminal Code (Chapter 28, "in the sphere of computer information crimes"). Meanwhile, in the foreign criminal legislation of computer crime are located in different sections, chapters, sections (subdivision) penal codes or laws (the Criminal Code of Sweden, of the Criminal Code of Denmark, the Criminal Code of Germany, of the Criminal Code of France, the Criminal Law, Criminal UK legislation: Act on the abuse in 1990 computers, at the personal data Act, 1998, Act of terrorism, 2000).
Fifth, in the foreign criminal law the basic object of the crime are not only public relations in the sphere of safe operation of computer information (the Criminal Code), but also other objects of a criminal assault (for example, human rights and freedoms — the criminal laws of the UK, France and Germany; freedom and the public peace — the criminal Code of Sweden; public safety — US criminal law, public order and public safety — the criminal law).
Sixth, by analyzing the objective aspect of computer crime, it can be concluded that the Criminal Code establishes the formal structure of a crime to create, use and distribution of malicious computer programs (Part 1 ofArt. 273 of the Criminal Code), without associating it with the onset of socially dangerous consequences. In the criminal law of foreign countries, where the creation, use and distribution of malicious computer programs is seen as a way to commit other crimes, the offense is a material (CC Sweden, Denmark, the Criminal Code, the Criminal Code of Federal Republic of Germany, France, the Criminal Code).
Seventh, in the Russian Criminal Code as the subject of computer crime is the only individual. In turn, in the criminal law of the Scandinavian and the Roman-Germanic legal families guilty may serve a legal entity (CC Sweden, Denmark, the Criminal Code, the Criminal Code of France and others.).
Eighth, the subjective aspect of computer crime in the Russian criminal law, in contrast to foreign legislation is characterized only by intention.
Ninth, in Art. Art. 272, 273 of the Criminal Code as a qualified fixed formulation act committed out of
selfish interest, ie, as a mandatory feature of the subjective side of crime appears the motive of a criminal act. Meanwhile, the foreign legislation (Denmark, Germany, China, Sweden, and others.), Including the CIS (Criminal Code of Belarus, of the Criminal Code of Georgia, the Azerbaijani Criminal Code, the Criminal Code of Kazakhstan, and others.), Criminal law which are based on the "Model Penal Code "does not take into account the motives and goals of a criminal act in the classification of computer crime.
Tenth, to criminal liability in Russia for committing computer crimes involved sane individuals who have reached the age of16 years. The Criminal Code of Latvia (Article 11) — age of criminal liability of individuals is 14 years old, Danish Criminal Code (§ 15) — 15 years, the Criminal Law (Article 17) — from 14 to 16 years.
Eleventh, it should be noted a large time gap between the appearance of computer crime and the establishment of appropriate criminal and legal mechanisms to deal with them in the Russian Federation and foreign countries. Criminalization of cybercrime in Russia began on 1 January 1997, in contrast to the United States, Sweden and other countries where the criminal liability was introduced in the 1970s — 1980s.
Twelfth, the maximum penalties for committing computer crime in Russia is 7 years imprisonment (in reality, the criminals are sentenced by the courts to punishment by a fine, correctional labor, conditional imprisonment). Meanwhile, in other developed countries (the US, China, France, and others.) Guilty of committing these criminal acts that resulted in grave consequences, faces a sentence of 10 years to life imprisonment.
With this in mind, the author proposes to reduce the age of criminal responsibility of individuals for the commission of crimes in the sphere of computer information if that act resulted in the onset of serious consequences (Part 4 of Art. 272, Part 3 ofArt. 273, Part 2 of Art. 274 of the Criminal Code) from 16 to 14 years. In this case, by setting the punish-
ment for causing serious consequences to 15 years in prison.
We believe it appropriate to toughen the penalties for computer crimes, taking into account the features that characterize the subjective aspect of the crime and include some of the objectives of committing a criminal offense in the disposition h. 3 tbsp. 272, h. 2 tablespoons. 273, h. 1 tbsp. 274 of the Criminal Code, in particular:
1. "The same acts committed for the purpose of concealing another crime or facilitating its commis-
sion ;
2. "The same acts committed for the purpose of terrorizing the population or influencing decisionmaking by public authorities and (or) the local government, as well as obstructing the normal functioning of the media, public authorities and (or) the local government, state and (or) municipal institutions and enterprises".
Sanctions for these acts to 10 years in prison.
This author's position, based on the fact that the computer criminals by their actions cause huge economic damage.
In addition, in 2012, hackers haktivistskie motion, foreign secret services began to make a large number of computer crimes for political motives (DDoS-at-tacks on government information resources; the use of malicious software to cyber-espionage, kibersabo-tazha, cyber-terrorism, and so on.), Which is already threatened Russia's national security.
Therefore, according to the author, the legislator should take a more proactive stance to protect the legitimate interests of society and the state from emerging cyber threats, including by improving the design of crimes in the sphere of computer information and toughening penalties for the perpetrators of these criminal acts.
In addition, we believe that law enforcement agencies should involve civil society (media, research and educational organizations, social movements, community councils, political parties, trade unions, religious groups, etc.) to prevent computer-related crime.
References:
1. Российские компании теряют миллионы в результате кибератак [Электронный ресурс] - URL: https://rg.ru/2014/10/20/ataki-site.html (09.11. 2016).
Problematic aspects of international cooperation of the Russian Federation on the fight against cybercrime
2. Ущерб экономике России от киберпреступности превысил 200 млрд. рублей [Электронный ресурс] - URL: http://ria.ru/economy/20160413/1409855094.html#ixzz45jCApNtn (09.11. 2016).
3. Уголовный кодекс Российской Федерации: федеральный закон от 13 июня - 1996 г. - № 63. -ФЗ//Собрание законодательства Российской Федерации. - 1996. - № 25. - Ст. 2954.
DOI: http://dx.doi.org/10.20534/EJLPS-16-4-13-15
Makushev Dmitry Ivanovich, law studentof the Irkutsk Law Institute Affiliated with the Academy of the General Prosecutor's Office
of the Russian Federation E-mail: [email protected]
Problematic aspects of international cooperation of the Russian Federation on the fight against cybercrime
Abstract: The article is devoted to topical issues of international cooperation of the Russian Federation and foreign countries in combating cybercrime. The author offers measures in international law on the improvement of cooperation between law enforcement agencies of foreign countries in the fight against computer crimes.
Keywords: European Convention on cybercrime, the United Nations, the Shanghai Cooperation Organization, Commonwealth of Independent States, computer crime.
The realities of modern world are that the rapid clear, wording is the contradiction with the Russian
development and introduction of information technologies have become an integral part of human life. The high speed of this process does not allow thorough approach to understanding and resolving all the changes in social relations, including in the sphere of legal regulation of combating computer crime. In relation to this phenomenon, it should be noted that computer crime is outside of one particular state, that is, adopts a transnational character. This problem causes concern of the world community and is a good reason to unite efforts of States and their cooperation in this direction.
Starting the consideration of this matter, we believe it is necessary to start with the indication that the first international instrument aimed at protecting society from computer crime and seeks to develop a unified policy in the sphere of criminal and criminal procedural law was the Council of Europe Convention on cybercrime [4], adopted on 23 November 2001 in Budapest. Currently, the mentioned Convention has been ratified by 49 States, but that is of interest, the Russian Federation is not included into their number. The reasons for this are un-
legislation and the violation of state sovereignty by the provisions of paragraph "b" of article 32 of the Convention, which provide the Commission the necessary actions without the consent of the country in which these actions are performed.
So, M. A. Prostoserdov, K. N. Evdokimov believes that many provisions of the Convention contradicts national legislation of Russia and violate its interests. For example, articles 29 and 32 give the opportunity to intervene in the computer system of another state and to take prompt action, regardless of social danger of acts without the permission of that state [1, 27; 6, 44].
Other authors believe that "the principal point of non-aligned Russia to the Convention is our acceptance of article 32b. Its vague wording allows for penetration into information networks of another state without notice, based on someone's personal permission. It is impossible to speak about a fruitful and mutually beneficial cooperation, if one of the parties doesn't even know about the holding on its territory, in this case in information and communication networks, the operational or investigative
