Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Certain Issues relating to the Application of Law in Handling Criminal Cases of Endangering the Security of Computer Information System

Fa Shi [2011] No.19

August 1, 2011

The Interpretations of the Supreme People's Court and the Supreme People's Procuratorate on Certain Issues relating to the Application of Law in Handling Criminal Cases of Endangering the Security of Computer Information System which was adopted at the 1524th meeting of the judicial committee of the Supreme People's Court on June 20, 2011 and the 63rd meeting of the 11th procuratorial committee of the Supreme People's Procuratorate on July 11, 2011 is hereby issued and will come into effect on September 1, 2011.

In order to give punishments in accordance the law for criminal activities of endangering the security of computer information system, certain issues relating to the application of law in handling this type of criminal cases are hereby interpreted as follows in accordance with the Criminal Law of the People's Republic of China and the Decision of the Standing Committee of the National People's Congress on Protecting the Internet Security:

Article 1 if any person who illegally obtains the computer information system data or controls the computer information system falls under any of the following circumstances, it shall be deemed that "the circumstances involved are serious" as specified in Paragraph 2 of Article 285 of the Criminal Law:
1. Where more ten pieces of identity authentication information on network-based financial services such as payment and settlement, securities trading and futures trading are obtained;
2. Where more than five hundred pieces of identity authentication information other than those in Item 1 of this Article are obtained;
3. Where more than twenty computer information systems are illegally controlled;
4. Where the illegal income is more than 5,000 yuan or an economic loss of more 10,000 yuan is incurred; or
5. Any other situation in which the circumstances involved are serious.
If any person who commits any of the acts specified in the preceding paragraph fall under any of the following circumstances, it shall be deemed as that "the circumstances involved are extremely serious" as specified in Paragraph 2 of Article 285 of the Criminal Law:
1. Where the number or amount is more than fivefold of that specified in Items 1 to 4 in the preceding paragraph; or
2. Any other situation in which the circumstances involved are extremely serious.
If any person who knows that another person illegally controls the computer information system uses the control over the computer information system, he or she shall be convicted and punished in accordance with the preceding two paragraphs.

Article 2 Any program or tool which falls under any of the following circumstances shall be deemed as "the special program or tool used to intrude into or illegally control the computer information system" as specified in Paragraph 3 of Article 285 of the Criminal Law:
1. Where it has the function of evading or breaking the security protection measures for the computer information system and obtaining the computer information system data without authorization or beyond authorization;
2. Where it has the function of evading or breaking the security protection measures for the computer information system and controlling the computer information system data without authorization or beyond authorization; or
3. Any other special program or tool designed to intrude into, illegally control the computer information system or illegally obtain the computer information system data.

Article 3 If any person who provides any program or tool which is used to intrude into or illegally control the computer information system falls under any of the following circumstances, it shall deemed that "the circumstances involved are serious" as specified in Paragraph 3 of Article 285 of the Criminal Law:
1. Where the person provides to more than five people any special program or tool which is able to be used to illegally obtain identity authentication information in such network-based financial services as payment and settlement, securities trading and futures trading;
2. Where the person provides to more than twenty people any special program or tool which is used to intrude into or illegally control the computer information system other than that in Item 1;
3. Where the person who knows that other people commit a criminal act of illegally obtaining identity authentication information in such network-based financial services as payment and settlement, securities trading, futures trading provides the program or tool to more than five such people;
4. Where the person who knows that other people commit a criminal act of intruding into or illegally controlling the computer information system other than that in Item 3 provides the program or tool to more than twenty such people;
5. Where the illegal income is more than 5000 yuan or an economic loss of more than 10,000yuan is incurred; or
6. Any other situation in which the circumstances involved are serious.
If any person who commits any of the acts specified in the preceding paragraph falls under any of the following circumstances, it shall be deemed that the circumstances involved in providing the program or tool which is used to intrude into or illegally control the computer information system are extremely serious:
1. Where the number or the amount is more than fivefold of those specified in Items 1 to 5 in the preceding paragraph; or
2. Any other situation in which the circumstances involved are serious.

Article 4 If any person who destroys the function, data or application program of the computer information system falls under any of the following circumstances, it shall be deemed that "the consequence is serious" as specified in Paragraphs 1 and 2 of Article 286 of the Criminal Law:
1. Where the person causes the main software or hardware of more than ten computer information systems to be unable to operate normally;
2. Where the person deletes, modifies, makes additions to data stored, processed or transmitted in more than twenty computer information systems;
3. Where the illegal income is more than 5000 yuan or an economic loss of more than 10,000yuan is incurred;
4. Where the person causes the computer information system which provides such basic services as the domain name resolution, identity authentication and charging to more than 1 million computer information systems or provides services to more than 10,000 users to be unable to operate normally for more than one hour in total; or
5. Where any other serious consequence is caused.
If any person who commits any of the acts specified in the preceding paragraph falls under any of the following circumstances, it shall be deemed that "the consequence of destroying the computer information system is extremely serious":
1. Where the number or the amount is more than fivefold of those specified in Items 1 to 3 in the preceding paragraph;
2. Where the person causes the computer information system which provides such basic services as the domain name resolution, identity authentication and charging to more than 5 million computer information systems or provides services to more than 50,000 users to be unable to operate normally for more than one hour in total;
3. Where the person destroys the function, data or application program of the computer information system in state organs or such fields as finance, telecommunication, transport, education, medical care and energy, causing the production and livelihood to be affected seriously or resulting in adverse social impact; or
4. Where any other extremely serious consequence is caused.

Article 5 any program which falls any of the following circumstances shall be deemed as "any destructive program such as computer virus" as specified in Paragraph 3 of Article 286 of the Criminal Law:
1. Where the program is able to reproduce and transmit any part, the whole or variation of itself through such media as internet, storage media, documents and thereby destroys the function, data or application program of the computer system;
2. Where the program is able to be automatically triggered under the pre-set conditions and thereby destroys the function, data or application program of the computer system; or
3. Any other special program which is designed to destroy the function, data or application program of the computer system.

Article 6 If any person who deliberately makes and transmits destructive programs such as computer viruses, thereby affecting the normal operation of the computer system falls under any of the following circumstances, it shall be deemed that "the consequence is serious" as specified in Paragraph 3 of Article 286 of the Criminal Law:
1. Where the person makes, provides or transmits any program specified in Item 1 of Article 5 hereof, resulting in the transmission of such program through such media as the internet, storage media and documents;
2. Where the person causes more than twenty computer systems to be implanted with programs specified in Items 2 and 3 of Article 5 hereof;
3. Where the person provides destructive programs such as computer viruses to more than ten people;
4. Where the illegal income is more than 5000 yuan or an economic loss of more than 10,000yuan is incurred; or
5. Where the person causes any other serious consequence.
If any person who commits any of the acts specified in the preceding paragraph falls under any of the following circumstances, it shall be deemed that "the consequence of destroying the computer information system is extremely serious":
1. Where the person makes, provides or transmits any program specified in Item 1 of Article 5 hereof, resulting in the transmission of the program through such media as the internet, storage media and documents which causes the production and livelihood to be seriously affected or results in adverse social impact;
2. Where the number or the amount is more than fivefold of those specified in Items 2 to 4 of the preceding paragraph; or
3. Where the person causes any other extremely serious consequence.

Article 7 If any person who knows that data is illegally obtained while the crime of illegally obtaining the computer information system data is committed or the control over the computer information system is illegally obtained while the crime of illegally controlling the computer information system is committed transfers, purchases, sells on an agency basis, or covers up or conceals in any other ways such data or control and the illegal income involved is more than 5000 yuan, the person shall be convicted of the crime of covering up or concealing illegal income and punished.
If any person who commits the act specified in the preceding paragraph and the illegal income involved is more than 50,000 yuan, it shall be deemed that "the circumstances involved are serious" as specified in Paragraph 1 of Article 312 of the Criminal Law.
If any entity commits the act specified in the first paragraph, the conviction and punishment criteria shall be subject to the provisions of the first and second paragraphs.

Article 8 if the crime of endangering the security of the computer information system is committed in the name of an entity or in the form of an entity and the circumstances involved reach the conviction and punishment criteria specified herein, the in-charger person directly liable and other people directly liable shall be investigated for criminal liability in accordance with Articles 285 and 286 of the Criminal Law.

Article 9 If any person who knows that another person commits any of the acts specified in Articles 285 and 286 of the Criminal Law falls under any of the following circumstances, it shall be deemed as a joint crime and punishment shall be given in accordance with Articles 285 and 286 of the Criminal Law:
1. Where the former provides to the latter any program or tool which is used to destroy the function, data or application program of the computer information system and the illegal income involved is more than 5000 yuan or such program or tool is provided to more than ten people;
2. Where the former provides to the latter such assistance as internet connection, server hosting, internet-based storage space, communication and transmission channels, settlement of fees, trading services, advertising services, technical trainings and technical support and the illegal income involved is more than 5000 yuan; or
3. Where the former provides to the latter funds in the amount of more than 5000 yuan by way of promoting software on an entrustment basis or placing advertisements.
If any person who commits any of the acts specified in the preceding paragraph and the number or amount involved is more than fivefold of that specified in the preceding paragraph, it shall be deemed that "the circumstances involved are extremely serious" or " the consequence is extremely serious" as specified in Articles 285 and 286 of the Criminal Law.

Article 10 If it is difficult to determine whether the computer information system in the fields of state affairs, national defense construction or state-of-the-art science and technology, any special program or tool used to intrude into or illegally control the computer information system or destructive programs such as computer viruses are those specified in Articles 285 and 286 of the Criminal Law, the department for the administration of the security protection of the computer information system at and above the provincial level shall be entrusted to conduct testing. The judicial authorities shall make a determination on the basis of the testing conclusion and in light of the particulars of the cases in question.

Article 11 The terms" the computer information system" and " the computer system" as mentioned herein refer to any system which has the function of automatically processing data, including computer, network equipment, communication equipment, automatic control equipment, etc.
The term "identity authentication information" as mentioned herein refers to data used to confirm the operational authority of a user in the computer information system, including accounts, passwords, digital certificates, etc.
The term "economic loss" as mentioned herein includes economic loss directly caused by criminal activities of endangering the computer information system to a user and necessary expenses paid by the user for restoring data and function.