한국과 중국의 사이버범죄 형사사법공조 강화를 위한 법개정 검토 - 유럽 사이버범죄협약을 기준으로 -

Abstract

Cybercrime is characterized by transcending borders without being subject to spatial restrictions. Therefore, international cooperation is essential to effectively deal with cybercrime. ‘The European Convention on Cybercrime’ is regarded as an exemplary case against cybercrime. It can be said that the cost of cybercrime damage and international isolation caused by not joining more expensive than the cost of legal amendment to meet the conditions of the convention on cybercrime. Therefore, both Korea and China are actively considering joining the convention, and it is required to carry out a preliminary work such as the amendment of laws and regulations in order to cooperate smoothly with the member countries. In this paper, we examined the substantive and procedural law requirements of ‘the European Convention on Cybercrime’ and examined the relevant provisions of Korea and China on the premise of accession. In Korea, there is a need to criminalize preliminary acts such as the production and possession of malicious programs, and criminal responsibility of corporations should be clarified for the substantive law. Procedural law require the establishment of provisions corresponding to data and traffic data maintenance and submission and computer data submission orders under Articles 16, 17 and 18 of the Convention. In China, due to the fact that there is no punishment rule corresponding to "abuse of device" in Article 6 of the Convention, it is necessary to establish the relevant provision. In the procedural law, the Criminal Procedure Act require revision work that provides explicit provisions on data preservation and submission orders.