Abstract:The development of the digital society has driven the iterative upgrading of cybercrimes in the traditional network society into digital crimes. As a new type of crime featuring new technologies, new methods and new business forms, digital crimes pose enormous challenges to the traditional criminal justice system. This paper conducts a study on the criteria of criminal punishability of digital crimes, which is consistent with the needs of digital social development. Based on the digital era, this paper analyzes the security challenges that digital crimes bring to both the digital society and the real society, and then dissects the prerequisites and benchmarks for the criminal punishability of digital crimes. By comprehensively employing comparative analysis, dialectical analysis, normative argumentation and other methods, this paper clarifies the criteria of criminal punishability of digital crimes, and ultimately constructs a three-tier judgment benchmark for criminal punishability which centered on substantial legal interests. First, the prerequisite for the criminal punishability of digital crimes is that the legal interest of order in digital space has suffered substantial impairment. With the digital transformation of criminal patterns, digital crimes have gradually evolved from a mere “networked tool” to a diversified digital ecosystem, expanding from localized individual harm to systemic public danger. Therefore, in determining punishability, a dual illegality perspective should be adopted: it is necessary to analyze not only whether the conduct violates prepositive norms and thus constitutes administrative illegality, but also to make an independent and substantive judgment on criminal illegality. Second, the benchmark for the criminal punishability of digital crimes is to identify the substantial impairment of the legal interest of order in digital space. Its substantive connotation lies in the infringement of the information order in digital space. Meanwhile, the legal interest of order in digital space needs to be translated into legal interests in physical space for evaluation, so as to return to the protection of individual legal interests in the real world. On this basis, it is necessary to judge whether there exists a causal relationship between the infringing act in digital space and the substantial impairment of legal interests, so as to achieve accurate imputation of digital crimes in the complex context of digital technology and restrict the overexpansion of criminal punishment in digital space. Third, the application of criminal punishability of digital crimes requires an analysis of the loss of substantial legal interests in digital space from a practical perspective. The essence of such loss is the destruction of the information order rather than formal disturbance of order. In judging whether substantial impairment is constituted, the core basis must be the substantive content to which specific information relates, rather than merely the scope or form of information dissemination. In essence, where a digital crime seriously infringes the legal interest of order in digital space, it may still constitute a crime even if such infringement is not translated into harm to real-world legal interests. At the same time, the infringement of the legal interest of order in digital space must still be translated into harm to real-world legal interests; otherwise, it cannot constitute a crime for lack of real-world social loss of legal interests as a foundational criterion. The technological characteristics of digital space have broken the linear causal chain between “single conduct” and “direct result” in traditional criminal law. Although the proof of causation has become more difficult, the hidden causal chain must still be analyzed from an emerging technology perspective when judging the criminal punishability of digital crimes. In summary, the innovation of this paper lies in analyzing the objective reality of the transformation of digital crimes from the situational characteristics of the digital society, and in exploring the changes in the criteria of criminal punishability under the new landscape of digital crimes from the perspective of substantial loss of legal interests. It not only responds actively to the challenge of the expanding scope of governance in criminal justice practice by taking substantial legal interests as the core, but also promotes the orderly upgrading of the criteria of criminal punishability for digital crimes in light of the development of digital technology, so as to achieve precise governance.
刘艳红. 数字犯罪的刑事可罚性研究[J]. 浙江大学学报(人文社会科学版), 2026, 56(1): 15-31.
Liu Yanhong. Research on the Criminal Punishability of Digital Crimes. JOURNAL OF ZHEJIANG UNIVERSITY, 2026, 56(1): 15-31.