网络犯罪与刑法的空间效力原

Cyber-Crime and the Principle of the Validity in Terms of Space in Criminal Law

对于网络犯罪的处罚,目前世界各国基本适用本国刑法的空间效力原则,其结果不仅导致了各国刑法空间效力的极度膨胀,也引发了各国间适用该原则的冲突。有鉴于此,中外学者提出了一些关于刑法空间效力原则的新兴理论,但均存在不少问题。处罚网络犯罪,通过纯解释学的“对症疗法”力不从心,因此有必要通过立法消除这种弊端。2004年7月1日开始生效的欧洲理事会《关于网络犯罪的公约》,为处罚网络犯罪而构建国际一致的法律体系开辟了一条新路。

At present, the principle of the validity in terms of space in home criminal law is applied to deal with the problem of the punishment of cyber - crime in the judicial practices of most of the nations in the world, which brings about the extreme expanding of the validity in terms of space and the conflicts of applying the principle among nations as well. In view of the actuality, many foreign and domestic scholars have put forward some new theories concerning the principle of the validity in terms of space, however, there exist many questions. The punishment of the cyber- crime could not be resolved by the allopathy in the pure hermeneutic, therefore, it is necessary to remove the abuse by the legislation. International Convention on Cyber- Crime, which was released by the Council of Europe and entered into force on July 7 in 2004, has pioneered a new way for the establishment an accordant jurisprudence on international level for the sake of the punishment of cyber- crime.